Diaz v Truong
[2002] NSWCA 265
•19 August 2002
CITATION: Diaz & Anor. v. Truong [2002] NSWCA 265 FILE NUMBER(S): CA 40101/02 HEARING DATE(S): 3 July 2002 JUDGMENT DATE:
19 August 2002PARTIES :
Rodrigo Diaz - 1st claimant
Asotoelau Pritchard - 2nd claimant
Tu Trinh Truong by her tutor Loan Mai - opponentJUDGMENT OF: Giles JA at 1; Hodgson JA at 62; Foster AJA at 109
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC1154/01 LOWER COURT
JUDICIAL OFFICER :Coorey DCJ
COUNSEL: Mr. H. Shore for claimants
Dr. A.S. Morrison SC with Mr. P.J. Nolan for opponentSOLICITORS: Dibbs Barker Gosling, Sydney for claimants
Stacks, Sydney for opponentCATCHWORDS: LIMITATION OF ACTIONS - Motor vehicle accidents - Leave to commence proceedings out of time - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on her behalf - Provision of particulars - Denial of liability - Whether proceedings can be commenced notwithstanding non-supply of particulars. LEGISLATION CITED: Motor Accidents Act 1988, ss.40, 48, 50A, 52. CASES CITED: Astill v. Newman [1999] NSWCA 43
Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541
Devlin v. Hibbard, Tupman DCJ, 18/2/98
Guest v. Southern (Studdert J, 22/9/95, unreported)
Hall v. The Nominal Defendant (1966) 117 CLR 423
Mancini v. Thompson [2002] NSWCA 38
Morrison v. Judd (CA, 10/10/95, unreported)
Nicholas v. Webb (No.2) (1993) 19 MVR 65
Nominal Defendant v. Manning 50 NSWLR 139
Nowlan v. Marson Transport Pty. Ltd. [2001] NSWCA 346
Parsons v. Doukas [2001] NSWCA 128
Russo v. Aiello [2001] NSWCA 306
Salido v. The Nominal Defendant (1993) 32 NSWLR 52
Sophron v. The Nominal Defendant (1957) 96 CLR 469
South Western Sydney Area Health Service v. Gabriel [2001] NSWCA 477DECISION: 1. Leave to appeal granted. 2. Appeal dismissed. 3. Claimants to pay opponent's costs of the application for leave and appeal, and to have a Suitors Fund certificate if otherwise entitled.
CA 40101/02
DC 1154/01Monday 19 August 2002GILES JA
HODGSON JA
FOSTER AJA
Rodrigo DIAZ & ANOR. v. Tu TrinhTRUONG
by her tutor Loan MAI
1 GILES JA: On 2 October 1997 the opponent was injured when struck by a motor vehicle owned by the second claimant and driven by the first claimant. By s 52(4) of the Motor Accidents Act 1988, she was not entitled to commence proceedings in respect of her claim for damages more than three years after that date except with the leave of the court in which the proceedings were to be taken. Her proceedings were not commenced within the three year period. On 15 February 2001 she filed a notice of motion in the District Court applying for leave to commence proceedings against the claimants by the filing of a statement of claim within 28 days. The notice of motion was heard by Coorey DCJ on 25 July 2001. On 19 October 2001, for reasons then published, his Honour granted leave.
2 By a summons filed in this Court on 14 February 2002 the claimants applied for an extension of time to apply for leave to appeal and for leave to appeal from the decision of Coorey DCJ. Full argument was heard on the applications, so that if leave to appeal were granted a further hearing would not be necessary.
3 An extension of time was not seriously in issue, although the failure to make a timely application for leave to appeal was not explained. For the reasons which follow, in my opinion the decision of Coorey DCJ was in error because there was not the requisite full and satisfactory explanation of the delay in commencement of the opponent’s proceedings. It is not necessary to consider whether error has been shown in the exercise of the discretion to grant leave which would have been enlivened if there had been a full and satisfactory explanation for the delay. Leave to appeal should be granted, and the appeal should be allowed.
The requirement of leave
4 Section 52 of the Motor Accidents Act relevantly provides:
(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person, the date of death,
except with the leave of the Court in which the proceedings are to be taken.
…
(4C) Subsection (4B)(b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.(4B) The leave of the Court must not be granted unless:
(a) The claimant provides a full and satisfactory explanation to the Court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under s 79 or 79A as at the date of the relevant motor accident.
5 The notion of a full and satisfactory explanation is used elsewhere in the Motor Accidents Act. By s 42 it is the duty of a person who is entitled to make a claim to ensure that a written report of the motor accident concerned is made within 28 days after the date of the accident, and if proceedings are commenced without having complied with the duty the person must provide a full and satisfactory explanation to the court for the non-compliance. By s 43 a claim must be made within 6 months after the date of the accident, or if the claim is in respect of the death of a person the date of death, and by s 43A a late claim may be made if the claimant provides a full and satisfactory explanation for the delay in making the claim.
6 What amounts to a full and satisfactory explanation is described in s.40(2):
- In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
The evidence explaining the delay
7 The opponent was born on 26 June 1992, and was five years old at the time of the accident. She was crossing the Cumberland Highway just north of its intersection with Canley Vale Road, in company with an older sister then aged about 13 or 16 (both ages are mentioned). The sister was carrying an infant younger sister and holding the opponent’s hand as they crossed to the median strip and then between motor vehicles stationary in the two lanes closest to the median strip. It appears that the opponent then broke free of her sister and ran from between the stationary motor vehicles into the third lane, where she was struck by the second claimant’s motor vehicle.
8 The opponent was severely injured. Her injuries included brain damage, and she is permanently disabled.
9 The opponent’s family initially engaged Harrisons The Lawyers of Parramatta to act on their behalf. Harrisons The Lawyers briefed counsel, and a conference was held with Mr McAuley of counsel on 10 July 1998 “whereafter various enquiries were made concerning liability”. The evidence did not amplify either the conference or the enquiries.
10 On 1 April 1998 a claim form under the Motor Accidents Act was served on the CTP insurer of the second claimant’s motor vehicle. By letters dated 28 April 1998 and 21 July 1998 the solicitors instructed by the insurer to act for the claimants, Abbott Tout, asked Harrisons The Lawyers for information of various kinds. They received no response.
11 On 10 December 1998 the claimants denied liability. The insurer nonetheless continued to meet medical and related expenses on a without prejudice basis.
12 On 22 September 1999 Abbot Tout wrote to HarrisonsThe Lawyers:
We refer to previous correspondence in respect of this matter and invite the claimant to institute proceedings.
Should you not institute proceedings within the time period of 3 years pursuant to Section 52 of the Motor Accidents Act the leave of the Court will have to be sought in order to do so and we will argue that, not only is there presumptive prejudice as referred to in Taylor v Brisbane South Regional Health Authority but also that the memories of the various witnesses have faded to an extent which causes actual prejudice to the defendant, particularly in a case such as this where liability is a most contentious issue.
We look forward to your reply.We suggest that it would be appropriate for the issue of liability to be determined separately to the issue of quantum. In those circumstances, we would be prepared to waive compliance with section 51A of the Act, (until such time as you are ready to proceed with the quantum aspect of the case) but not Section 48 of the Act and in that regard we would require your response to our letters dated 28 April 1998 and 21 July 1998.
13 From a later reference to it, Mr Lidden of counsel informally “conferred with the Plaintiff and her family on 20 October 1999”. The evidence did not disclose any more.
14 On 18 November 1999 Abbott Tout wrote again to Harrisons The Lawyers:
We refer to our letters dated 28 April 1998 and 21 July 1998, together with out more recent letter dated 22 September 1999.
If there is any reason why you are unable to provide the particulars and documents requested, could you please advise.We would appreciate the courtesy of your replies.
15 At some time in November 1999 Doherty Partners of Liverpool assumed conduct of the matter in place of Harrisons The Lawyers. Mr Reetov of Doherty Partners was asked by Mr Harrison of Harrisons The Lawyers, whom he knew, to take the matter over as the solicitor who had been doing personal injury work at Harrisons The Lawyers had gone overseas “and had effectively left him in the lurch”. The purpose was “to make sure that the file got a move on, that things happened to it”.
16 The file maintained by Harrisons The Lawyers went to Doherty Partners. Mr Reetov accepted that the letter of 22 September 1999 “would have been” on the file when he received it, and that “if it was on the file I would have read it”.
17 On 18 January 2000 Abbott Tout wrote to Doherty Partners:
We refer to your letter dated 8 December 1999 and note that we have still not received any reply to our letters dated 28 April 1998, 21 July 1998 and 22 September 1999.
We look forward to hearing from you.Further, we request that you provide us with a copy of the claimant’s 1999 school reports, and all other school reports on a continuing basis.
18 The letter of 8 December 1999 was not in evidence.
19 On 5 April 2000 Doherty Partners wrote to Abbott Tout:
We refer to your letter dated 22 September 1999.
In particular, we note the 3 year limitation period; we are at present drafting the necessary pleadings and will ensure that they are filed well before 2 October 2000.
Please also note that we are not prepared to have the issues of liability and quantum determined separately.
In relation to your letter dated 18 January 2000, we advise that we have requested copies of all school reports from our client’s parents. We will forward copies thereof to you upon receipt.We are at present drafting answers to your requests for further particulars dated 28 April and 21 July 1998.
20 This letter was signed by Mr Reetov. Mr Reetov had no recollection of it. He said in his affidavit that the letter “was written by Stephen Modder who was employed by Doherty Partners as a locum solicitor at the time”. He said in his oral evidence that he did not dictate the letter, and that from Mr Modder’s initials as part of the reference it appeared to him that it had been written by Mr Modder; it was possible that Mr Modder may have had a conversation with him, or Mr Modder might have made the decision conveyed by the third paragraph of the letter without reference to him; “It’s more probable that he either discussed the matter with me or he, in accordance with the file in reviewing file [sic], realised that it was a decision that had been made previously”. He said that he may have read the letter when signing it but did not recall it, and that he may have apprehended at the time that the letter of 22 September 1999 “raised [that there was a limitation period] as an issue” but “I cannot recall remembering that a limitation period was about to expire”.
21 On 28 August 2000 Mr Reetov returned a telephone call from Mr Newell of Abbott Tout. His file note of the conversation was:
- 28/8/2000: 5.07pm – 5.11pm
-spoke to Dean Newell.
-would still like to split liability and quantum and have heard separately.
-needs my s 50A particulars and update medicals.
-I’ll check whether any o/s F&BP’s.
-he’ll get something in writing from his Client Insurer that they, without admission of liability, will continue to pay treatment expenses, which are hefty.
22 According to Mr Newell, in the conversation he said words to the effect, “The three year time limit in this matter expires on 2 October 2000. Do you intend to institute proceedings before that time?”, and Mr Reetov replied, “We will be filing shortly”. Mr Newell then referred to the need for particulars and said, “We still intend to seek a split trial once proceedings have been instituted”. Mr Newell was not cross-examined. Mr Reetov said that he vaguely recalled the conversation with Mr Newell; he could not say exactly what was said in the conversation, and it was possible that the conversation was as given by Mr Newell “but I can’t remember having a conversation talking about those specific things”. He said that he could not recall discussing a three year limitation period with Mr Newell.
23 On 31 August 2000 Mr Newell telephoned Mr Reetov. Mr Reetov’s file note of the conversation read:
- TRUONG
- 12.27pm – 12.30 pm
P/C from Dean Newell re: what we discussed previously
Confirmed that the Insurer will continue payments regardless of whether proceedings initiated.
They still want to split liability and quantum.
24 According to Mr Newell, he said words to the effect, “The insurer will continue to make reasonable payments once proceedings have been instituted. I await receipt of those items we spoke about the other day”.
25 On 31 August 2000 Doherty Partners wrote to Abbott Tout enclosing school reports and other material relating to the opponent.
26 The period of three years in s 52(4) of the Motor Accidents Act expired on 2 October 2000. Proceedings had not been commenced.
27 On 6 October 2000 Mr Reetov left Doherty Partners and took employment with another firm of solicitors. Ms Rita Palazzolo took over the matter. According to Ms Palazzolo, when Mr Reetov left Doherty Partners “negotiations were undertaken concerning the future conduct of this matter and the imminent imitation period pursuance [sic] to Section 52 of the Motor Accidents Act was not appreciated”. Ms Palazzolo said that between 9 October and 29 November 2000 “there was a course of correspondence and telephone calls concerning the future conduct of the matter”, and that on the last-mentioned date “it was resolved that the Plaintiff would retain Doherty Partners to act in the matter”. This was not further explained.
28 On 7 December 2000 a brief was delivered to Mr Lidden. On 21 December 2000 Mr Lidden advised that the limitation period had expired and it would be necessary to make an application to extend time.
29 On 12 January 2001 Doherty Partners wrote to Abbott Tout providing information in answer to the letter of 28 April 1998. The opponent’s application in the District Court was then filed.
30 The opponent made her application in the District Court by her mother as her tutor. There were the references to the opponent’s “family” engaging Harrisons The Lawyers and conferring with Mr Lidden and to Doherty Partners obtaining school reports from the opponent’s parents, but otherwise there was no evidence as to who gave instructions to Harrisons The Lawyers or to Doherty Partners in the interests of the opponent: the inference is almost irresistible that her parents did so. I will shortly set out a reference to Mr Reetov speaking to Lan Truong, who was the opponent’s older sister with whom she had crossed the road, and it may be that Lan Truong acted as interpreter and intermediary with the parents. Other than the references last mentioned and Ms Palazzolo’s reference to the course of correspondence and telephone calls, there was no evidence of any communications between either firm of solicitors and the opponent’s parents.
31 Other than the reference to the informal conference with Mr Lidden, there was no evidence showing what Harrisons The Lawyers did towards commencing proceedings or explaining why the letters from Abbott Tout went unanswered.
32 Mr Reetov said in his affidavit that while he had the carriage of the matter he was “under the misapprehension that a child, who was injured in a motor vehicle accident, had three years from the date they [sic] turned 18 years of age to commence proceedings”. Ms Palazzolo referred to a file note and letter, not in evidence, “when [Mr Reetov] spoke with Lan Truong and advised her that the limitation period would expire after three years plus 18 years of age and then there was a letter addressed to the Truongs confirming that conversation”. The dates of the conversation and the letter were not stated.
33 In his oral evidence Mr Reetov said that he could not remember when he ceased to hold the view put forward in his affidavit, and that it was “most probably discussions with a barrister” that caused him to cease to hold it. He said that he was not sure whether it was before or after he left Doherty Partners. It was possible that he might have been released that his view was incorrect while he was at Doherty Partners, but probably not because he left Doherty Partners “without reviewing whether any limitation period had expired in the Truong matter”. When taken to the letter of 22 September 1999 on the file, the letter of 18 January 2000 and the conversation with Mr Newell on 28 August 2000, he gave the evidence I have earlier set out. Mr Reetov did not otherwise explain the continued inactivity under his stewardship or why he was not alerted to the three year period.
34 Ms Palazzolo said that she was under the same misapprehension as Mr Reetov, and only became aware of her error upon the conference with counsel on 21 December 2000. A perusal of the file would have brought to her attention the three year period under the Motor Accidents Act. Whether either the course of correspondence and telephone calls between 9 October 2000 and 29 November 2000 or the preparation of the brief delivered to counsel on 7 December 2000 involved perusal of the file was not explored in the evidence.
The decision below
35 Coorey DCJ relevantly said (I have corrected the mis-transcriptions of the names of Mr Reetov and Ms Palazzolo; the reference to two applicants is because Lan Truong also applied for leave to commence proceedings):
On the first day of the hearing of this application evidence was given by the applicants’ previous solicitor, Alexander Reetov, that he had previously thought that both the applicants had until they reach 21 years of age to commence proceedings. Similar evidence was given by Rita Palazzolo. Ms Palazzolo said that she was under the same misapprehension as Alexander Reetov. She also referred to a file note which showed that Alexander Reetov thought the applicants had three years from the date of 18 years to commence proceedings. I accept the evidence of both Mr Reetov and Ms Palazzolo.
…
Mr Poole submits that in relation to both applicants the delay is totally explained by the evidence of the solicitors, Alexander Reetov and Rita Palazzolo. Mr Poole argues that both solicitors have admitted openly their mistake about the limitation period. Furthermore in relation to Trinh Truong it was not possible for her to commence an action as she was a minor and therefore was a disabled person. In relation to Lan Truong she was a young person at the time of the accident, namely sixteen years of age, some allowance must be made for her age. Furthermore Mr Poole submits that the evidence of Dr Robertson (see annexure 8 of the affidavit of Rita Palazzolo) shows that Lan Truong, a young lady, suffered considerable post accident stress. Mr Poole submits that it is quite understandable that such a young lady would be in no state to assert her legal rights.
I cannot accept the defendant’s argument that the applications that have been given are inadequate to explain the delay. I am satisfied that a sufficient explanation for the delay has been given in both applicationsThe argument by the defendant that Lan Truong was able to interpret for her family does not mean that therefore Lan Truong was in full control of herself or that she was totally aware of her legal rights. I should add here that the ability to interpret simply means that a person may be able to speak two languages, it really means no more than that.
36 In my respectful opinion, this does not adequately address the evidence explaining the delay. There was much more than could be answered by acceptance of the evidence of Mr Reetov and Ms Palazzolo that they were under their misapprehensions.
A full and satisfactory explanation
37 The description of a full and satisfactory explanation in s 40(2) of the Motor Accidents Act presents some difficulties.
38 If the first sentence were taken alone, a full account of “the conduct … from the date of the accident until the date of providing the explanation” would be both a full and a satisfactory explanation; fullness would also provide satisfactoriness. But the second sentence adds to this. Even if there is a full account, it is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay. The two sentences must be read together. Is there a full account of the conduct? Even if there is, is it an explanation, and is it a satisfactory explanation, including in that a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay?
39 The full account in the first sentence is an account of “the conduct” over a period. The sentence does not say what conduct. From the context, the conduct is the conduct in relation to the claimant complying with the duty to report, making the claim or commencing proceedings, as the case may be. The conduct is clearly not confined to that of the claimant himself or herself, as shown by the words “including the actions, knowledge and belief of the claimant”. That is only to be expected, since the description must have been written in the knowledge that claimants usually act through others, typically solicitors, in making claims and commencing proceedings.
40 When asking whether the full account of the conduct is a satisfactory explanation, satisfactoriness is not confined to whether a reasonable person et cetera. That a reasonable person et cetera is a necessary condition, but it is not stated as a sufficient condition.
41 The purpose of “unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been notified in experiencing the same delay” in the second sentence is tolerably clear. It is intended to set an objective standard of conduct which the full account of the conduct to which the first sentence refers must achieve. That does not necessarily make the explanation satisfactory, although it is not easy to see why a full account of conduct meeting the objective standard would not generally be a satisfactory explanation.
42 The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being “justified in experiencing” a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay.
43 Hodgson JA, whose reasons I have had the advantage of reading in draft, considers that in the second sentence the focus is directed solely at the acts and omissions of the claimant himself or herself, so that whether the explanation is satisfactory is judged against what would have been the acts and omissions of a reasonable person in the position of the claimant. I respectfully disagree. It does not seem to me congruent with the necessary reading of the two sentences together that the full account of the conduct which by the first sentence may provide the full and satisfactory explanation, the conduct being that of the claimant himself or herself plus that of others through whom the claimant is acting (typically but not limited to a solicitor), is in part disregarded when assessing whether the explanation is a satisfactory explanation. Nor do I think that the wording of the second sentence requires this narrowed focus. The second sentence sets an objective standard. A person can fail through someone else to comply with a duty, and can experience delay because of acts or omissions of another or others through whom the person is acting, (as I have said, experiencing something normally means being subjected to it by the acts or omissions of another or others). That the hypothetical reasonable person is a person in the position of the claimant leaves that person open to the consequences of the acts or omissions of another or others through whom the person is acting.
44 It is possible that support for this comes from s 52(4C) of the Motor Accidents Act. It appears that a claimant who is legally incapacitated because of the claimant’s age or mental capacity must still provide a full and satisfactory explanation for the delay. If the hypothetical reasonable person is legally incapacitated, and regard can be had only to the acts and omissions of that person, can it ever be said that the person would not have been justified in experiencing the delay?
45 I do not think that these views of a full and satisfactory explanation are inconsistent with authority.
46 Guest v Southern (Studdert J, 22 September 1995, unreported) was decided when the Motor Accidents Act did not have the description. Section 52(4) was said to require an explanation of the delay which was complete and was also satisfactory, and it was said that before an explanation could be satisfactory it must persuade the court that the delay ought to be excused in all the circumstances. Regard was had to the conduct of the claimant’s solicitors as well as the claimant, although it was said that the fact that the claimant was blameless and his solicitors were essentially to blame for the delay was “a very material consideration” In the circumstances, the explanation for the delay was held to be satisfactory.
47 Morrison v Judd (CA, 10 October 1995, unreported) was also decided when the Motor Accidents Act did not have the description. It was concerned with service of a statement of claim beyond the two year period for service under rules of court. The opponent relied on it for Kirby P’s observation that the availability of an action against the delinquent solicitors, while relevant, was of little weight in determining whether the two year period should be extended. There was not the same statutory context, and I do not find the case of assistance.
48 The description of a full and satisfactory explanation was included by the Motor Accidents Amendment Act 1995, which also amended in various respects the provisions concerning giving notice, making claims and commencing proceedings. The second reading speech does not shed any light on the description.
49 Astill v Newman [1999] NSWCA 43 focussed on the exercise of discretion, and does not assist on explanation for delay. In Parsons v Doukas [2001] NSWCA 128 the claimant’s solicitor had been delinquent. Powell JA said (at [50]) that no explanation, let alone a satisfactory explanation, had been provided, but his Honour’s reasons concentrated on the exercise of discretion because the course of amendments to the Motor Accidents Act meant that a full and satisfactory explanation was not required. Sheller JA and Davies AJA relevantly agreed. Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 is notable for excoriation of the ambush theory of litigation, but on the facts the claimant had not gone to solicitors and the only material acts or omissions were those of the claimant (see at [5], [35]).
50 Russo v Aiello [2001] NSWCA 306 was concerned with delay in making a claim. Young CJ in Eq, with whom Meagher JA agreed, considered that the trial judge had been entitled to hold that there had not been a full explanation for the delay. On the facts, the claimant said that he did not make a claim because he thought his disabilities would improve, and the trial judge considered that he had not explained when he realised that his disabilities had not improved. Hodgson JA dissented, considering that the claimant had provided a full explanation. Satisfactoriness was not separately considered.
51 In Mancini v Thompson [2002] NSWCA 38 the issue was whether there had been a full explanation of delay in making a claim, and satisfactoriness was not in issue. Rolfe AJA, with whom Beazley and Stein JJA relevantly agreed, said (at [46]-[47]) that a full explanation meant that the claimant could not pick and choose the information to be given relevant to the delay, and that once a full explanation was given the court had to decide whether it was satisfactory in the sense of satisfactorily explaining the delay. The inadequacy asserted was failure fully to disclose a medical history. It was held that the failure did not mean that the explanation for the delay was not full.
52 To sum up, in the present case it is necessary:
A full account of the conduct?(a) that there be an account of the conduct in relation to commencing proceedings, in the circumstances being the conduct of the claimant’s parents and the solicitors;
(b) that the account be a full account;
(c) that the full account be an explanation for the delay in commencing proceedings; and
(d) that the explanation be a satisfactory explanation, and in particular that it achieve the standard that a reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified.
53 It may be accepted that nothing was required of the opponent herself towards commencing proceedings, by reason of her age and disability. At some point her parents were led by Mr Reetov to believe that proceedings could be commenced at any time before the opponent turned 21, although what (if anything) Harrisons The Lawyers may earlier have told them in that regard was not disclosed. No doubt the opponent’s parents were reliant on what the solicitors told them and what the solicitors did or did not do, and the insurer was meeting out-of-pocket expenses on a without prejudice basis. A time would come when the parents would question what was or was not being done, and there was no evidence of what they were told in the conference with Mr McAuley in July 1998 or the informal conference with Mr Lidden in October 1999, or of what questions they asked, if any, and what they were told in October-November 2000. I am nonetheless prepared to assume that a more full account of the opponent’s conduct through her parents or of her parents’ conduct was not required.
54 In my opinion, however, there was not a full account of the opponent’s conduct through her solicitors or of the solicitors’ conduct.
55 Harrisons The Lawyers were acting for eighteen months or more (they were instructed as of April 1998, but when before then they were instructed did not appear). There was the conference with Mr McAuley and “various enquiries were made concerning liability”, and there was the informal conference with Mr Lidden of which no more is known. Doherty Partners acted thereafter. The letters requesting information received no response. The letters remained unanswered until early 2001, and failure to answer them was part of the delay in commencing proceedings. What were Harrisons The Lawyers doing? Their apparent neglect did not preclude the timely commencement of proceedings, but an account of the conduct from the date of the accident until the date of providing the explanation was not a full account unless it included the conduct of Harrisons The Lawyers. Doherty Partners were acting for nearly a year before the three year period expired. What were Doherty Partners doing about providing the information? Whether or not the proceedings could not be commenced until the information which s 51A of the Motor Accidents Act required had been provided, an account of the conduct of Doherty Partners was not a full account unless it dealt with that.
56 Why did neither firm of solicitors commence proceedings? Absence of a belief that proceedings had to be commenced within three years did not explain why proceedings were not commenced. Was it because it was desirable that the opponent’s condition stabilise? Was it because of difficulty in obtaining material to support the claimant’s liability or particularise her damages? Or was it because the solicitors were doing nothing to these ends when they should have been doing things? We do not know. The account of the conduct did not fully explain what was being done or not done.
57 More directly calling for explanation, while Mr Reetov had the conduct of the matter he had stark warning of the three year period under the Motor Accidents Act. It was there in the file in the letter of 22 September 1999. It was acknowledged in the letter of 18 January 2000, which of course was also in the file thereafter. It was conveyed directly to Mr Reetov in the conversation of 28 August 2000. The failure to commence proceedings is not explained by a bland assertion of a continuing misapprehension that a child injured in a motor vehicle accident had three years from the date of turning 18 to commence proceedings. While Mr Reetov may well have been under that misapprehension at an early time, and apparently advised the opponent’s parents accordingly through Lan Truong, to assert the continuance of the belief in the face of the letters on the file and in particular after the conversation of 28 August 2000 belies a full account of the opponent’s conduct through Doherty Partners and of the conduct of Doherty Partners. Asserting the continuance of the belief demonstrates that the account is not full, because explanation is required of how it could be so. Indeed, Mr Reetov did not firmly assert a misapprehension continuing until he left Doherty Partners, and the question of continuing payments regardless of whether proceedings were initiated, noted by Mr Reetov in August 2000, would be likely to have arisen only in the context of a time for initiating proceedings. In the circumstances of this case the account was not made a full account by Mr Reetov saying that he had no recollection of the letters or the telephone conversation.
58 When Ms Palazzolo took over conduct of the matter one would think that the first thing she would do was read the file. It contained the letters of 22 September 1999 and 18 January 2000. A full account of the opponent’s conduct through Doherty Partners (which must extend to the date of providing the explanation – it does not stop with the expiry of the three year period) would include what Ms Palazzolo did or failed to do, in order to explain why she remained under the misapprehension she asserted. There was no such account.
59 Coorey DCJ did not address these matters. His Honour simply accepted that Mr Reetov and Mr Palazzolo were under their misapprehensions. I do not think that the assertions of their misapprehensions, or the acceptance of their evidence in that respect, satisfied the requirement of a full account of the conduct in accordance with the first sentence in the description of a full and satisfactory explanation.
A satisfactory explanation?
60 If I am incorrect in this and the account is to be regarded as a full account of the conduct, I do not think it was a satisfactory account. Much of what I have already said can be taken up. For the reasons earlier given, apart from the standard set by the second sentence in the description the failure to provide the required information was left unexplained and the assertions of continued misapprehensions called for explanation of how it could be so. Applying the standard, and respectfully differing from Hodgson JA, I consider that the reasonable person in the position of the opponent is a person acting through the solicitors, and that the conduct of the solicitors is part of what is considered when assessing whether the reasonable person would have been justified in experiencing the delay. That reasonable person would not have been justified in experiencing the delay.
Orders
61 It is a hard thing that the opponent be shut out from bringing her proceedings against the claimants. But the legislature has established stringent requirements, for the purposes explained in the Motor Accidents Act, and the barrier in s 52(4B)(a) must be given effect according to its terms. I propose orders -
- 1. Extend the time to apply for leave to appeal until 14 February 2002.
2. Grant leave to appeal.
3. Direct that the notice of appeal be filed within 7 days.
4. Appeal allowed.
5. Set aside the orders made by Coorey DCJ on 19 October 2001, and in lieu thereof order that the opponent’s notice of motion be dismissed with costs.
6. Opponent to pay the claimants’ costs of the applications and the appeal, and to have a certificate under the Suitors Fund Act if qualified.
62 HODGSON JA: On 19 October 2001, Coorey DCJ made an order granting leave to the opponent Tu Trinh Truong pursuant to s.52(4) of the Motor Accidents Act 1988 to commence proceedings against the claimants Rodrigo Diaz and Asotoelau Pritchard by filing a Statement of Claim in the form annexed to the opponent’s Notice of Motion within 28 days.
63 The claimants seek leave to appeal against that order. The matter was argued on the basis that, if leave be granted, the appeal would be determined without further argument.
CIRCUMSTANCES
64 The opponent was born on 26 June 1992. On 2 October 1997, she suffered very severe injuries when she was struck by a motor vehicle driven by the first claimant and owned by the second claimant. At the time, she was crossing a road with her 16 year old sister. (A claim made by the sister was also dealt with by the primary judge, but has now apparently been settled).
65 On 1 April 1998, a claim form under the Motor Accidents Act was served on the claimants’ insurer. On 10 December 1998, the insurer denied liability.
66 On 28 April 1998, the claimants’ solicitor wrote to Harrisons, solicitors then acting for the opponent, seeking certain particulars. That letter was in the following terms:
We advise that we have been instructed by MMI General Insurance Limited to act on their behalf in relation to the accident involving Tu Trinh Truong on 2 October 1997 on the Cumberland Highway, Canley Heights.
Our client is unable to make a determination in relation to liability until a full investigation has been carried out. This is currently under way and we will communicate our instructions to you in relation to liability as soon as practically possible.
In the meantime, in accordance with your client’s obligations pursuant to s.48 of the Motor Accidents Act, could you please provide us with the following particulars:
1. The height of Trinh Truong and her 16 year old sister at the time of the accident.
2. A precise description of events leading up to the accident.
3. Please forward to us all medical reports from treating doctors and specialists in your possession.
4. Please have one of your client's parents/guardians sign the enclosed authorities.
5. Please provide the name and address of the any school attended by your client.
6. The names and addresses of all doctors who have treated the Plaintiff since the date of the accident.
We look forward to your reply.7. The name and address of your client's treating general practitioner prior to the accident.
A further letter was sent on 21st July 1998, in the following terms:
Thank you for your letter dated 25 May 1998.
Could you please advise on what basis you will not agree to our interviewing Lan Truong.
In the meantime, could you please seek instructions from Lan Truong in relation to the following questions and have the questions and answers contained in a statutory declaration to be sworn before an appropriate Justice of Peace or other authorised person:
1. Please provide a precise description of the events leading up to the accident from the time that Lan and her sisters reached the median strip in the middle of the Cumberland Highway leading up to the moment of impact.
2. Please describe the respective positions on the roadway of Lan Truong, Tu Trinh Truong and Quynth Truong at the moment of impact.
3. Was Lan holding Trinh's hand at any stage during the road crossing? If so, when did Lan cease holding Trinh's hand?
4. Please advise whether Trinh was walking or running just prior to being struck.
5. Please advise Lan's height at the time of the accident or, if unknown, her current height.
In relation to Trinh Truong could you please provide the following information:
We look forward to your reply to this letter, and our previous letter dated 28 April 1998, at your earliest convenience.1. Her height at the date of the accident or, if unknown, her current height.
67 The particulars were not supplied, and on 22 September 1999, the claimants’ solicitors wrote again to Harrisons, in the following terms:
We refer to previous correspondence in respect of this matter and invite the claimant to institute proceedings.
We suggest that it would be appropriate for the issue of liability to be determined separately to the issue of quantum. In those circumstances, we would be prepared to waive compliance with Section 50A of the Act, (until such time as you are ready to proceed with the quantum aspect of the case) but not Section 48 of the Act and in that regard we would require your response to our letters dated 28 April 1998 and 21 July 1998.Should you not institute proceedings within the time period of 3 years pursuant to Section 52 of the Motor Accidents Act the leave of the Court will have to be sought in order to do so and we will argue that, not only is there presumptive prejudice as referred to in Taylor v. Brisbane South Regional Health Authority but also that the memories of the various witnesses have faded to an extent which causes actual prejudice to the defendant, particularly in a case such as this where liability is a most contentious issue.
68 In November 1999, Doherty Partners replaced Harrisons as the opponent’s solicitors, and on 5 April 2000, they wrote the following letter to the claimants’ solicitor:
We refer to your letter dated 22 September 1999.
In particular, we note the 3 year limitation period; we are at present drafting the necessary pleadings and will ensure that they are filed well before 2 October 2000.
Please also note that we are not prepared to have the issues of liability and quantum determined separately.
In relation to your letter dated 18 January 2000, we advise that we have requested copies of all school reports from our client's parents. We will forward copies thereof to you upon receipt.We are at present drafting answers to your requests for further particulars dated 28 April and 21 July 1998.
69 This letter was apparently signed by Alex Reetov, it gave “our reference” as Alex Reetov, and specified that “enquiries” were to be to Gabby Porcella.
70 On 28 August 2000, Dean Newell, the solicitor with carriage of the matter for the claimants, spoke by telephone to Alex Reetov, who then had carriage of the matter for the opponent. Mr. Reetov’s note of that conversation was as follows:
- 28/8/2000: 5.07 pm - 5.11 pm
-spoke to Dean Newell.
-would still like to split liability and quantum and have heard separately.
-needs my s.50A particulars and update medicals. I'll check whether any o/s F&BP's.
-he'll get something in writing from his Client Insurer that they, without admission of liability, will continue to pay treatment expenses, which are hefty.
AVR
71 Mr. Newell gave evidence that, in that conversation, he also said words to the effect that “the three year time limit in this matter expires on 2 October 2000. Do you intend to institute proceedings before that time?” to which Mr. Reetov said “We will be filing shortly”. Mr. Newell was not cross-examined on that evidence. Mr. Reetov was cross-examined, and said he could not recall words to that effect, but did not deny it.
72 On 31 August 2000, Doherty Partners sent a letter to the claimants’ solicitor in the following terms, with enclosures:
We refer to previous correspondence and enclose by way of service a copy of the following:
2. School records for Lam Truong, the Plaintiff's elder sister.1. A copy of school reports and other material relating to the Plaintiff, Ms Trinh Truong, enclosed under cover of letter dated 1 June 2000 from the New Children's Hospital.
73 On 6 October 2000, that is, four days after the expiry of the three year limitation period, Mr. Reetov left Doherty Partners, and Rita Palazzolo took over conduct of the matter for the opponent at about the end of November 2000.
74 On 7 December 2000, a brief was delivered to Counsel on behalf of the opponent, and on 21 December 2000 Counsel advised that the limitation period had expired.
75 On 12 January 2001, Doherty Partners prepared a letter to the claimants’ solicitors giving certain particulars. There was some evidence that this letter was sent, but according to the claimants’ solicitors it was not received. The letter was in the following terms:
We refer to the above matter and to your letter dated 28 April 1998.
We apologise for the delay in reply.
1. Unfortunately we do not have precise measurements as to the height of our client and her 16 year old sister at the time of the accident.We provide the following answers to your request for particulars and note we adopt your paragraph numbering:
2. Please see Motor Accidents Claim form.
3. We enclose by way of service, the following medical reports:-
(a) Royal Alexandra Hospital for Children - hospital admission notes dated 2 October 1997.
(b) Royal Alexandra Hospital for Children - hospital admission notes dated 17 June 1998.
(c) Report of Dr Jenny Alt dated 9 February 2000.
(d) Report of Dr Rod Hunt dated 10 June 1998.
(e) Royal Alexandra Hospital for Children - case conference notes dated 31 May 2000.
4. Please advise whether you have been provided with duly signed authorities.
5. We refer to material provided to you under cover of our letter dated 31 August 2000.
6. We refer to 5.
7. Prior to the accident, our client's general practitioner was Dr La of 37 John Street, Cabramatta.
76 On 15 February 2001, the opponent’s Notice of Motion for an extension of time was filed.
77 Before the primary judge, both Mr. Reetov and Ms. Palazzolo gave evidence that they had been under the misapprehension that the opponent had three years from the time she turned 18 to bring proceedings. Apparently this was dispelled, so far as Ms. Palazzolo was concerned, by Counsel’s advice on 21 December 2000. Mr. Reetov said that the letter of 5 April 2000 was drafted by a locum, and although it appeared to be signed by him, he did not recall reading or signing it.
78 Mr. Newell gave the following evidence in his affidavit, on which he was not cross-examined:
- 10. I respectfully submit that the liability hearing in this matter should have taken place well over one year ago. If the plaintiff is granted leave to commence proceedings, by the time this matter is prepared for hearing, it will be almost four years since the subject accident and I respectfully submit that the memories of all the witnesses involved will have faded to such an extent that the defendants will suffer actual, as well as presumptive, prejudice.
STATUTORY PROVISIONS
79 The statutory provisions most relevant to this application are ss.40(2), 48, 50A and 52 of the Motor Accidents Act 1988. Sections 48, 50A and 52 are in the following terms:
48(1) The object of this section is to maximise communication between the parties so that sound and timely information is available and disputes are minimised.
(1A) A claimant must co-operate fully in respect of the claim with the person against whom the claim is made and the person's insurer for the purpose of giving the person and the insurer sufficient information:
(a) to be satisfied as to the validity of the claim and, in particular, to assess whether the claim or any part of the claim may be fraudulent, and
(b) to be able to make an early assessment of liability, and
(c) to be able to make an informed offer of settlement.
(2) In particular, the claimant must comply with any reasonable request by the other party or the other party's insurer:
(a) to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records, or
(b) to provide a photograph of and evidence as to the identity of the claimant.
(2A) The reasonableness of a request may be assessed having regard to criteria including the following:
(a) the amount of time the claimant needs to comply with the request,
(b) whether the information sought is cogent and relevant to a determination of liability or quantum of loss, having regard to the nature of the claim,
(c) the amount of information which has already been supplied to or is available to an insurer to enable liability and quantum of loss to be assessed and an offer of settlement made,
(d) how onerous it will be for the claimant to comply with the request,
(e) whether the information is privileged,
(f) whether the information sought is sufficiently specified,
(g) the time of the request and whether the claimant will be delayed in commencing proceedings by complying with the request.
(3) The duty under this section applies only until court proceedings are commenced in respect of the claim but if the claimant fails without reasonable excuse to comply with this section, court proceedings cannot be commenced in respect of the claim while the failure continues.
52(1) The objects of this section are:50A Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of:
(a) the injuries sustained by the claimant in the motor accident, and
(b) all disabilities and impairments arising from those injuries, and
(c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and
(d) any economic losses and other losses that are being claimed as damages,
sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages.
(a) to encourage and facilitate the investigation, assessment and negotiation of a claim for damages without the commencement of court proceedings, and
(b) to impose a limitation period of 3 years for the commencement of legal proceedings for damages under this Act and to enable the extension of that period only if:
- (i) the claimant can explain the reasons for the delay in not commencing the proceedings within the 3-year period, and
(ii) the claim is likely to result in an award of substantial damages,
or in the circumstances described in subsection (4A).
(a) 6 months have elapsed since notice of the claim was given to the other person and (if required by section 43 (4)) to the other person's insurer, or
(b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer, or
(c) if the other person's insurer has made an offer of settlement to the claimant before the claimant commences court proceedings, 28 days have elapsed from the date on which the claimant's response to the offer is communicated to the other person's insurer,
whichever is the later or latest.
(1B) Subsection (1A) (c) applies only to the first offer made by the other person's insurer and not to any subsequent offer.
(2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs:
(a) the insurer denies all liability in respect of the claim,
(b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,
(c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
(3) (Repealed)
(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:
(a) the date of the motor accident to which the claim relates, or
(b) if the claim is made in respect of the death of a person, the date of death,
except with the leave of the court in which the proceedings are to be taken.
(4A) However, if at the end of the 3-year period referred to in subsection (4), the claimant has complied with section 50A but is unable to commence court proceedings because of the effect of subsection (1A) (b) or (c), the claimant may commence court proceedings within 28 days after the period under subsection (1A) (b) or (c), or the later of those periods, has elapsed.
(4B) The leave of the court must not be granted unless:
(a) the claimant provides a full and satisfactory explanation to the court for the delay, and
(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.
(4C) Subsection (4B) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.
(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
80 The reference to s.52(4)(b) to a “full and satisfactory explanation” requires attention to s.40(2), which is in the following terms:
- 40(2) In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
DECISION OF PRIMARY JUDGE
81 The primary judge accepted the evidence of Mr. Reetov and Ms. Palazzolo as to their understanding of when the relevant limitation period expired. He found that this amounted to a “sufficient explanation” for the delay. He did not accept the claimants’ submission as to prejudice: he noted that the accident had been investigated by the New South Wales Police Service Crash Investigation Unit, and statements obtained from the driver and two independent witnesses; that claim forms had been served within six months; and that Mr. Newell had located all relevant witnesses by 22 September 1999. He rejected a submission by the claimants that the opponent did not have a case, because it could not show that she could have been seen by the driver before the accident. His ultimate finding on discretion was in the following terms:
- While I accept that there might always be a presumed prejudice in cases such as these two cases I am of the view that there is no prejudice to the respondent in either case to the extent which would deprive the defendant of a fair trial.
PROPOSED GROUNDS OF APPEAL
Accordingly, he granted the application.
82 The claimants seek to rely on the following grounds of appeal:
1. His Honour erred in concluding that a full and satisfactory explanation to the Court for the delay had been given in accordance with Section 52(4B) of the Motor Accidents Act, 1988.
2. His Honour erred in not finding that the need for a full and satisfactory explanation extended to the failure of the Respondent's solicitors to issue within time after the Appellants' written and oral advice as to the limitation period, the need for filing proceedings within it and the acknowledgement of the same.
3. His Honour erred in failing to find significant presumptive and actual prejudice.
4. His Honour erred in failing to disclose or disclose sufficiently his reasons for his conclusion and findings.
5. His Honour erred in considering the way in which presumptive prejudice and actual prejudice might impact upon the trial of the action if leave were granted.
6. His Honour failed to have any or any sufficient regard to the steps taken by the Appellants to ensure that proceedings were commenced within time and to the reasons advanced therefor in considering prejudice.
7. His Honour erred in misapprehending or reversing the onus upon the question of prejudice and fair trial.
8. His Honour erred when considering what the Respondent needed to establish at trial and in what circumstances the Second Appellant would be required to give evidence when considering whether there was prejudice.
9. His Honour erred in concluding that there was no relevant prejudice when Particulars, inter alia as required by Section 50A of the Motor Accidents Act, 1988, although promised had not been provided either in a timely fashion or at all.
11. His Honour erred in the exercise of a discretion pursuant to Section 52(4) of the Motor Accidents Act, 1988.10. His Honour erred in granting leave pursuant to Section 52(4) of the Motor Accidents Act, 1988 when Particulars required by Section 50A had been requested and not provided.
SUBMISSIONS
83 Mr. Shore for the claimants first submitted that the requirement of a full and satisfactory explanation, contained in s.52(4B), had not been satisfied. There was no explanation whatsoever of how Mr. Reetov and Ms. Palazzolo could have continued in their belief despite the letters and the conversation of 28 August 2000. It had to be accepted that the part of the conversation not recorded in Mr. Reetov’s note did occur, because Mr. Newell had not been cross-examined and Mr. Reetov did not deny it. There was also no explanation of why the particulars required by ss.48 and 50A, being conditions precedent to the bringing of proceedings, had not been supplied. The requirement of a full and satisfactory explanation extended to the conduct and omissions, not merely of the claimant herself, but also of the persons acting on her behalf. Even if one read the second sentence of s.40(2) as applying only to the acts and omissions of the claimant herself, still the requirement of a full explanation remained and that had not been satisfied.
84 Next, Mr. Shore submitted that the order should not have been made because conditions precedent to the taking of proceedings, namely compliance with ss.48 and 50A, had not been satisfied. This was a bar to the making of the order; or at least was a very substantial discretionary consideration against the making of an order, to which no consideration had been given.
116 Examples may be multiplied, it being frequently said that it may be unfair to relegate the client to a far less satisfactory claim against his solicitor, when, through no fault of his own, he would lose a superior right to sue the actual tortfeasor. Thus in Morrison & Anor v Judd (CA 40504/95, 10 October, 1995 at p 11) Kirby P, after an extensive review of authority said:-
- The availability of an action against a negligent legal representative is relevant because common sense says that it is so. It means that the litigant, who may be wholly or mainly innocent, is not put out of court without some chance of redress, however difficult that chance may be to enforce. To that extent an injustice, which might otherwise occur to the litigant, may be capable of being avoided. However, precisely because of the kind of difficulties which Smith J listed in Scardamaglia , it is a consideration which “cannot carry much weight.
117 It is clear that considerations of this kind necessarily play a part in the construction and application of various statutes imposing limitation periods. Salido v The Nominal Defendant (1993) 32 NSWLR 52), decided in respect of an earlier version of s.52(4) of the Motor Accidents Act 1988, is an illustration.
118 The legislative provisions in question in these proceedings, namely s.52(4) and s.52(4B) were inserted in the Act in 1995, as was s.40(2). Earlier provisions had required “a full and satisfactory explanation for…the delay”,
- a concept which was undefined and unelucidated by second reading speech or parliamentary debate. It is possible that s.40(2), which now offers a definition or exposition of this phrase, may have been enacted in response to decisions such as Nicholas v Webb (No 2) (1993) 19 MVR 65, in which it had been held that the words “full and satisfactory” were conjunctive and related to the quality of the explanation offered for the delay, but not to the conduct responsible for the delay. This interpretation had been rejected by Studdert J in Guest v Southern & Anor (22 September 1994 NSWSC) where his Honour had held that “full” meant “complete” and “satisfactory” meant the claimant was required to persuade the Court that the delay should, in all the circumstances, be excused. This decision preceded the amendments. However, the Explanatory Note to the Motor Accidents Amendment Act 1995, the second reading speech and the parliamentary debate cast no light.
119 I come, then, to the section as presently framed. Section 52(1) speaks only of “the claimant”. Thus, by s.52(1)(b)(i), the three year limitation period can be extended only if “the claimant can explain the reasons for the delay in not commencing the proceedings within the three year period”. By s.52(4) “a claimant is not entitled to commence proceedings” after the three year period “except with the leave of the Court in which the proceedings are to be taken”, which leave must not be granted unless ”the claimant provides a full and satisfactory explanation to the Court for the delay.” Section 40(2) provides as follows:-
- In this Part, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
120 I agree that, as a matter of reasonable construction, the explanation called for cannot be restricted to an explanation personal to the claimant. Despite the absence of reference to those acting on his behalf, their acts or omissions in that regard must fall for consideration. To hold otherwise would be to ignore the background history to which I have made reference. Thus, when the conduct of his solicitor has contributed to or wholly caused the relevant delay, that conduct must be explained as part of the claimant’s obligation to provide “a full and satisfactory explanation”, pursuant to s.51(4B)(a).
121 As the judgment of Hodgson JA shows, difficulty arises when consideration is given to the obligations of a “claimant” as provided in the two sentences of s.49(2). The subsection, also, has other difficulties relating to its exposition of the phrase “full and satisfactory explanation”. I shall turn to these, in the first place.
122 The first sentence of the subsection appears to equate a “full and satisfactory explanation” with “a full account of the conduct, including the actions, knowledge and belief of the claimant” which is to be provided “from the date of the accident until the date of providing the explanation”. Assuming for the moment that the “conduct” referred to is conduct not only of the claimant personally but also of those acting for him, those words could be construed as requiring a point by point account of all steps taken in relation to the claim by all those involved in it from its very outset until the provision of the explanation contemplated in s.51(4B)(a). If this were its correct interpretation, it could lead to explanations of considerable and unnecessary prolixity, unreasonably burdensome to both the author and the reader. I do not think that that is the legislative intention. The “full account” required is one focussed on “the delay”, a phrase, which, in my view, can refer only to the time which has relevantly elapsed since the expiry of the limitation period. What is required is a full account of the conduct which has resulted in the action being out of time, that is, one which is complete and not simply a selection of facts likely to assist the application for extension. Facts which relate only to ordinary preparatory steps taken well within the limitation period need not, in my view, be the subject of detailed exposition, although the section would seem to require some reference to them, because of the time-frame it prescribes.
123 In terms of the “fullness” of the account, I regard this case as fairly borderline. I am, however, in respectful disagreement with Giles JA. I consider that the admittedly exiguous and compendious references to the activities undertaken by the solicitors handling the case are, in the circumstances where the primary judge has found the cause of the delay to be their misapprehension of the time limit, sufficiently “full” to comply with the section.
124 I do not agree, with respect, with Hodgson JA, that the section confines the question of the satisfactoriness of the explanation to its second sentence. In my opinion, the “account of the conduct” referred to in the first sentence must also be “satisfactory”, in the sense referred to by Studdert J, whose view I respectfully adopt. It must form part of the satisfactory explanation, if s.54(4B)(a) is to be engaged in favour of an applicant.
125 I find the second sentence difficult. I agree with Hodgson JA that it appears to focus attention on the claimant, at least to the extent that his particular “position” in the whole of the factual situation is to be taken into account. Does “position” involve particular personal characteristics, such as, in the present case, childhood and incapacitating brain damage? If the introduction of the “reasonable person” is a legislative attempt to import an objective standard, is one to assess the satisfactoriness of the explanation by the application of what, in this case, would seem to be an absurdly artificial yardstick, namely the standard of a reasonable brain-damaged infant. Or, is it the legislative intention that these personal characteristics be ignored and that the claimant’s “justification” for “experiencing” the delay be assessed on the basis that he is the hypothetical “reasonable person”, well known to the law. The latter approach would attribute very little work to the words “in the position of”.
126 Doing the best I can, I have come to the conclusion that the second sentence relates back to the words in the first sentence “the actions, knowledge and belief of the claimant” and requires that these be scrutinized according to a standard of “reasonableness”. Where the claimant is out of time because his lawyer has allowed this to happen, then the claimant’s activities, knowledge and belief must also be examined, to see if he has contributed to this situation. Has he, for instance, failed to answer his solicitor’s letters, or changed his address without notifying his solicitor? Has he, having been advised by his solicitor as to the existence of the limitation period, ignored the advice? Conversely, if he has been wrongly advised as to the extent of this period, are there circumstances which would have led a reasonable person to query the advice? Other examples can be envisaged. If the answers to such enquiries point to a failure on the part of the claimant to measure up to the standard of the “reasonable person”, then that failure could require a finding that he was not “justified” in “experiencing” the delay, with the result that the delay cannot be satisfactorily explained.
127 In this situation the words “in the position of the claimant” have work to do. Although in an unclear manner, they provide an indication of legislative intention that, in the application of the “reasonable person” standard, regard must be paid to the particular position of the claimant. If the claimant, because of his position, could not be expected to meet the measure of “a reasonable person”, then this objective standard does not apply to him and the disqualification imposed by the second sentence upon his explanation does not arise.
128 In my opinion, the opponent, who could never be regarded as “a reasonable person” does not encounter the particular disqualification provided for in the second sentence. Her explanation must still be assessed as to whether it is “satisfactory” in accordance with the first sentence, read with s.52(4B)(a). Having regard to the reasonable reliance of the family upon the solicitor’s advice and the total incapacity of the opponent herself, I am satisfied that the explanation is satisfactory.
129 I am also satisfied that, in accordance with authority, little weight should be given to any right of action the claimant may have against the solicitors. This right should not stand in the way of an order extending time, if it is otherwise available.
130 I agree with Hodgson JA’s decision in relation to the effect of s.52(1B) and (2)(a) upon s 50A in these proceedings. I accept the submission on behalf of the opponent that the question of compliance or non-compliance with s.48(2) does not arise until the time of commencement of proceedings. I note that it is asserted on behalf of the opponent that compliance has already occurred, but this is not accepted by the claimant. Resolution of this dispute is not called for in these proceedings, but clearly compliance with the section must be ensured.
131 I agree with Hodgson JA that it has been demonstrated that it would not be unfairly prejudicial to the claimant if time were extended. I consider that it is just and fair in the circumstances that the extension be granted.
132 As previously indicated, I agree with the orders proposed by Hodgson JA.
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