Edwards v Devine

[2011] NSWDC 2

District Court

New South Wales

Medium Neutral Citation:

Edwards v Devine [2011] NSWDC 2

Hearing dates:

20 January 2011

Decision date:

27 January 2011

Before:

Levy SC DCJ

Decision:

1. The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011;

2. The defendant is to pay the plaintiff's costs of the summons;

3. The exhibits may be returned;

4. Liberty to apply on 7 days notice if further orders are required.

Catchwords:

LIMITATION OF ACTIONS - application for leave to proceed under s 109 of Motor Accidents Act 1999 - whether full and satisfactory explanation provided for delay - whether delay has caused defendant significant prejudice that would preclude a fair trial

COSTS - appropriate order where defendant exercised the choice to contest the plaintiff's compelling claim for entitlement to a grant of leave to proceed

Legislation Cited:

Civil Procedure Act 2005, s 98
Motor Accidents Compensation Act 1999, s 109(1), s 66(2)
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373
Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643
Salido v Nominal Defendant (1993) 32 NSWLR 524
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
State of NSW v Stanley [2007] NSWCA 330
Walker v Howard [2009] NSWCA 408

Category:

Principal judgment

Parties:

Kelly Leanne Edwards (Plaintiff)
Stephen Devine (Defendant)

Representation:

Counsel:
Mr P Mooney (Plaintiff)
Mr J Turnbull (Defendant)
Solicitors:
Steve Masselos & Co (Plaintiff)
Dibbs Barker (Defendant)

File Number(s):

2010/346714

Table of Contents

Nature of the case	[1]
Facts	[2] - [10]
Issues for determination	[11] - [13]
Array of evidence on the application	[14] - [23]
Chronology of relevant events	[24] - [49]
Applicable legislation	[50] - [53]
Issue 1 - Whether the explanation was full or satisfactory	[54] - [110]
Complaints concerning the state of particulars	[59] - [71]
Full and satisfactory explanation for delay	[72] - [110]
Issue 2 - Whether significant prejudice arises rendering a fair trial unlikely	[111] - [119]
Issue 3 - The appropriate order for costs	[120] - [129]
Disposition	[130]
Orders	[131]

Judgment

Nature of case

1. By summons filed on 19 October 2010, the plaintiff, Kelly Leanne Edwards, seeks leave pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 [ "MAC Act" ] , to commence proceedings against the defendant, Stephen Devine, in respect of injuries she received in a motor vehicle collision that occurred on 20 June 2005.

Facts

2.   At about 2.55pm on Monday 20 June 2005, the plaintiff was a rear seat passenger in a motor vehicle being driven in a southerly direction along Richmond Road Berkshire Park, NSW. At that time, the defendant was driving his semi-trailer in a southerly direction along Richmond Road when his vehicle collided with the rear of a south facing stationary vehicle at the intersection of Richmond Road with Llandilo Road. As a result of that collision, the stationary vehicle that was struck from behind by the defendant's vehicle was propelled over the centre line of Richmond Road and into the path of the vehicle in which the plaintiff was travelling as a passenger. A further collision then occurred between those two vehicles.

3.   At the time of the collision, the plaintiff was aged 27 years. She worked as a retail sales assistant. She was in good health. She was 27 weeks pregnant.

4.   In the collision, the plaintiff suffered significant abdominal trauma, which resulted a major placental abruption. This required an emergency mid-line caesarean section. This resulted in the premature delivery of a shocked female foetus weighing 950 grams. After unsuccessful attempts at neonatal resuscitation, the foetus was pronounced dead after 31 minutes. There is no doubt on the medical evidence, that the placental abruption caused the premature delivery, and the subsequent neonatal death of the plaintiff's foetus was due to perinatal asphyxia.

5.   The plaintiff underwent surgical repair of her internal injuries. These included sub-serosal tears of the mesentery, the tissues overlying and supplying circulation to the intestines. Laparotomy also revealed tears to the plaintiff's duodenum. In addition to being left with disfiguring abdominal scarring, including a keloid component, as a result of the nature of the surgical approach taken to the emergency caesarean section delivery, the plaintiff was left with a weakened uterus. This necessitated repeat caesarean section deliveries in her later pregnancies. Each of these pregnancies involved premature deliveries due to interference with normal uterine function. There is expert opinion to the effect that the plaintiff is likely to encounter future gynaecological problems, which could lead to a need for early hysterectomy in her fourth decade.

6.   Following the collision, the plaintiff has also had some recorded lumbo-sacral difficulties, with disc bulging and degeneration secondary to her injuries. The prognosis for those problems is for the development of later deterioration.

7.   Significantly, the plaintiff has been diagnosed with post-traumatic stress disorder. From the medical evidence tendered on the application, it is apparent that she has obviously had difficulties with grief over the neonatal death of her daughter, as well as problems with depression, anniversary depression, and emotional difficulties with coping, including experiencing post-natal depression with her subsequent pregnancies.

8.   The serial updating reports obtained from the plaintiff's treating psychiatrist Dr Svetlana Trmcic, covering the period 30 August 2006 to 16 April 2009, demonstrate a consistent theme of psychological problems which had not stabilised, and which required ongoing treatment. This is a matter that is of some relevance to defining the parameters of the plaintiff's claim for psychological impairment. It is also relevant to the procedural issues that have arisen in connection with the advancement of her claim.

9. At the outset of the hearing of the summons, the defendant's CTP insurer, Allianz Australia Insurance Limited [Allianz], fairly conceded that the collision in question was a major collision, and that as a result, the plaintiff sustained significantly serious injuries that fulfilled the requirements of s 109(3)(b) of the MAC Act . This application is therefore not concerned with a detailed appraisal of the likely quantum of the plaintiff's claim, as is normally required by that sub-section.

10.   The plaintiff is now aged almost 33 years. Subsequent to her injury, she and her partner have had 3 children who are presently aged 4 years, 3 years and 8 months. The evidence tendered on the application clearly establishes that the plaintiff has suffered, and still significantly suffers, from the physical and psychological effects of the injuries that are the subject of these proceedings. I will refer to those matters in further detail where it becomes relevant to do so in connection with the issues that call for decision on this application.

Issues for determination

11.   Initially, despite the wide array of issues that were initially raised for determination at the hearing of the summons, as a result of discussions between the parties before the hearing commenced, sensibly, those issues were narrowed and limited to the following matters:

Issue 1 : Whether the plaintiff has provided a full and satisfactory explanation sufficient for the granting of leave for her to proceed to file her statement of claim outside the 3 year limitation period, notwithstanding the incurred delay;

Issue 2 : Whether the defendant is likely to suffer significant prejudice if the plaintiff were to be granted leave, and such that it is unlikely that a fair trial of the damages issues could be achieved;

Issue 3 : The appropriate order for costs in the event the plaintiff was successful in obtaining leave to proceed under s 109 of the MAC Act .

12.   On behalf of the defendant, it was fairly conceded that no relevant prejudice arises in respect of the liability issues, if leave to proceed were to be granted to the plaintiff. Instead, the defendant argued that the delay in bringing the proceedings has not been fully or satisfactorily explained, and this has prejudiced a fair trial in respect of the following heads of damage:

(a)   Non-economic loss;

(b)   Past and future loss of earning capacity;

(c)   Past and future domestic assistance;

(d)   Past and future treatment costs.

13.   The defendant also sought to ventilate complaints over the state of the particulars that had been provided by the plaintiff's solicitor.

Array of evidence on the application

14.   It is relevant to review the array of evidence tendered on the application.

15.   Exhibit "A" comprised a chronology of events prepared by counsel for the plaintiff. The defendant ultimately conceded the chronology as being a reasonable and correct representation of the relevant events set out therein. Those events were extracted from the other documents tendered on the application.

16.   Exhibits "B" and "C" comprised affidavits sworn on 14 October 2010 and 12 January 2011, by Mr Gregory Masselos, the solicitor for the plaintiff. These affidavits dealt with matters concerning investigation of the plaintiff's proposed proceedings, the gathering of evidence for the proceedings and relevant procedural matters. Exhibited to the first affidavit sworn by Mr Masselos was a bundle of materials that was presented to the Motor Accidents Authority Principal Claims Assessor and for the CARS assessment. This material comprised a paginated bundle of some 323 pages consisting of historical hospital discharge summaries, medical reports both from treating doctors and medico-legal experts, tax returns and other relevant documents, which based the plaintiff's damages claim against the defendant. The defendant has conceded that when that bundle was served on 4 December 2009, this addressed the matter of particulars.

17.   Exhibit "E" comprised an updated medical report dated 25 October 2010 from the plaintiff's treating psychiatrist, Dr Trmcic. A series of 10 earlier such reports from Dr Trmcic, which covered the period between 18 September 2006 and 16 April 2009, were earlier incorporated into the bundle that was exhibited to Exhibit "B".

18.   Exhibit "F" comprised an initial rehabilitation plan dated 14 September 2006, addressed to Allianz. This had been prepared by Ms Theresa Tran, an occupational therapist, who reported to Allianz on behalf of Catalyst Health and Training.

19.   Exhibit "G" comprised a bundle of 13 letters from Allianz. These were and variously addressed to the plaintiff's solicitor, the plaintiff, and to the plaintiff's treating psychiatrist. That correspondence spanned the period between 21 November 2006 and 28 April 2009. Through that correspondence, Allianz variously provided copies of treatment reports to the solicitor for the plaintiff, or approved the plaintiff incurring further expenses in respect of psychiatric treatment.

20.   Exhibit "H" comprised an historical printout of treatment expenses incurred by the plaintiff and paid for by Allianz on behalf of the defendant pursuant to s 83 of the MAC Act . Those payments spanned the period between 15 December 2005 and 31 August 2009.

21.   Exhibit "1" comprised an affidavit sworn on 17 December 2010 by Mr Daniel Hanna, the solicitor for the defendant. Mr Hanna received his instructions to act for Allianz on or about 21 December 2009. Mr Hanna's affidavit annexed historical correspondence from Allianz to the plaintiff's solicitor. Annexure "H" to Mr Hanna's affidavit comprised an extensive 11 page submission on behalf of Allianz to the CARS Assessor. That submission was dated 14 January 2010, and addressed questions of argued procedural breach, liability, prejudice, general submissions on quantum, as well as addressing the specific heads of damage of non-economic loss, past and future economic loss, past and future domestic assistance, past and future treatment expenses, and interest on past economic loss. Those submissions were prepared in response to the submissions made to the CARS Assessor on behalf of the plaintiff, and which appear between pp 23 - 59 of the plaintiff's bundle, being GSM-1, which was exhibited to the affidavit of Mr Masselos, sworn on 14 October 2010.

22.   In that context, Mr Hanna's affidavit included the following statement

"20. Despite the purported "assessment" process that took place after the statutory expiry of the claim, and despite having some 18 years' experience in advising Allianz regarding motor accident personal injury claims in NSW, I remain unable to advise my client of the validity of several components of the claim, for reasons including those issues as prejudicial to the insurer in annexures "C", "D", "F" and "H" hereto."

23.   Exhibits "C", "D" and "F" to Mr Hanna's affidavit comprised a reiteration of an earlier request for particulars and a formal submission on behalf of Allianz in which complaints including matters of procedural fairness were made concerning the late claim. Those complaints were rejected by the MAA and the matter was referred to the CARS process : Exhibit "G" to Mr Hanna's affidavit. It is common ground between the parties that no prerogative relief was sought by Allianz following the administrative rejection of those submissions.

Chronology of relevant events

24.   Following her injuries, the plaintiff was an inpatient at Nepean Hospital between 20 June and 28 June 2005. During that period, on her behalf, her father arranged for her present solicitors to be retained to act on her behalf. These solicitors have continued to represent her in respect of her dealings with Allianz concerning her claim for damages.

25.   On 11 July 2005, the plaintiff completed an Accident Notification Form, a copy of which was Annexure "A" to her affidavit that comprised Exhibit "D". The plaintiff's responses to the questions asked in that form clearly provided Allianz with all relevant liability and personal particulars that an insurer would have reasonably required in order to commence its own claims investigation. These responses by the plaintiff also provided all relevant details of her injuries, details of her treating doctors and details of her employment situation, including an indication that she was unable to return to work at that time. In this way, Allianz was also made aware that no rehabilitation plan had been formulated for the plaintiff at that time. Allianz was also made aware that the plaintiff had been receiving treatment in the form of grief counselling from a psychologist.

26.   By letter dated 15 August 2005, Allianz acknowledged receipt of the plaintiff's claim form: Exhibit "D", page 35. By letter dated 28 September 2005, Allianz notified the solicitor for the plaintiff of an admission with regard to the issue of breach of duty of care in respect of liability for the collision in question: Exhibit "D", page 36.

27.   Significantly, both on 30 June 2005 and again on 5 July 2005, the plaintiff had signed two separate forms of authority authorising Allianz to contact and obtain relevant information and documents from any doctor, hospital or any other health service provider: Exhibit "D", pages 12 and 33. It is plain from the evidence tendered on this application, that Allianz had acted on that authority, and had in fact proceeded to gather relevant documentary material as part of its management of the claim that had been notified to it by, or on behalf of, the plaintiff.

28.   The compendious bundle of reports exhibited to the 14 October 2010 affidavit of Mr Masselos, amply demonstrates that Allianz used the forms of authority provided by the plaintiff to access information from her treating doctors and allied health care providers. This is evidenced by the significant number of medical reports within that bundle that were addressed to Allianz. In my view, contrary to what was submitted on behalf of that insurer, it would have been highly improbable that the health care practitioners who treated the plaintiff, would have provided such extensive and detailed reports and information about the plaintiff's medical condition, including sensitive details of her reproductive and her psychological status, without the plaintiff's signed authority permitting them to disclose such information.

29.   The medical material gathered by Allianz pursuant to the authorities provided by the plaintiff included details of the plaintiff's prior health history as was recorded by the plaintiff's general practitioner from 1989 until the collision in question. The material also included a detailed description of the plaintiff's injuries and the pattern of post-injury consultations and treatment that was provided by treating doctors,

30.   On 7 March 2006, the plaintiff's treating psychologist, Ms Carroll, advised Allianz that the plaintiff was severely anxious and depressed, and required ongoing treatment for grief management counselling, in order to assist her to come to terms with her loss: Exhibit "D", page 37. Allianz approved and paid for that treatment, and other more extensive professional treatment in respect of these matters, as is evident from Exhibits "E", "F","G" and "H".

31.   On 18 June 2007, which was almost 2 years after the plaintiff's injury, Allianz wrote to the plaintiff's solicitor pointing out that the plaintiff's psychological condition had not yet stabilised, and that therefore, it was " premature " for a decision to be made in respect of the whole person impairment of the plaintiff.

32.   In my view this was a matter of some significance, as that letter was in response to a request from the solicitor for the plaintiff dated 14 June 2007, referring to previous correspondence and medical reports, where that correspondence in fact sought a concession from Allianz that the plaintiff's degree of impairment exceeded 10 per cent : Annexures "A" and "B" of the affidavit of Mr Masselos sworn on 14 October 2010.

33.   On 21 July 2008, just over 3 years after the plaintiff's injury, Dr Trmcic advised Allianz that the plaintiff was reactive and labile in her affect, and that she was experiencing preoccupation, resentment, discomfort and stress. Some of this was associated with the legal process.

34.   As at January/February 2009, Allianz was disputing the plaintiff's entitlement to a whole person impairment of 10 per cent : Annexures "I" and "J" to the affidavit of Mr Masselos sworn on 14 October 2010. This was of some relevance to the entitlement of the plaintiff to make a claim for non-economic loss.

35.   On 4 March 2009, as a result of a course of correspondence, in the face of a dispute as to the degree to which the plaintiff was entitled to a whole person impairment, Allianz ultimately considered that it was reasonable to refer the matter to MAS for assessment : Annexure "K" to the affidavit of Mr Masselos sworn on 14 October 2010

36.   On 7 July 2009 the plaintiff submitted herself to two separate MAA appointed MAS Assessments, namely by a plastic surgeon and by a consultant gynaecologist : pp 188 - 201 of the bundle GSM-1 exhibited to the affidavit of Mr Masselos, sworn on 14 October 2010.

37.   On 20 August 2009 the plaintiff submitted herself to two further MAA appointed MAS Assessments, namely by a specialist occupational physician and by a consultant psychiatrist : pp 202 - 226 of the bundle GSM-1 exhibited to the affidavit of Mr Masselos, sworn on 14 October 2010.

38.   The MAS assessments involved a detailed evaluation of the plaintiff's pre and post-injury history and they recorded the respective findings of each of the Assessors following their examination of the plaintiff. This process resulted in a combined whole person impairment assessment of 18 per cent : p 226 of the bundle GSM-1 exhibited to the affidavit of Mr Masselos, sworn on 14 October 2010.

39.   It is apparent from the medical material tendered, that Allianz has at various times had the plaintiff examined by Dr Robert Lyneham, a consultant obstetrician and gynaecologist, Dr Ian Barnett, a consultant orthopaedic surgeon, and Dr Robert Lewin, a consultant psychiatrist. The respective reports from these doctors were not tendered on this application.

40.   During the period up until 30 September 2009, there was controversy over the extent of the plaintiff's level of whole person impairment as a result of the injuries in question. On that date, the Medical Assessment Service certified the plaintiff's combined level of whole person impairment at 18 per cent. In this regard, total impairment was notionally assessed at 26 per cent. An additional assessment of 8 per cent was made in respect of psychological injury.

41.   In the period during October and November 2009, the plaintiff's solicitor prepared an application to CARS for general assessment.

42.   On 4 December 2009 the plaintiff lodged her application for general assessment within the framework of the MAA Act . At the hearing of the summons, the defendant conceded that the documents that were provided by the plaintiff's solicitor, and which accompanied that application were extensive, and would support the view that by that point in time, Allianz had sufficient particulars of the case the plaintiff was seeking to make. This is a matter to which I will return in connection with my analysis of Issue 2 .

43.   On 13 January 2010, Allianz sought to have the plaintiff's application for a CARS assessment dismissed. On 23 February 2010 the Principal Claims Assessor of the Motor Accident Authority rejected Allianz's application for dismissal. The matter then proceeded to a CARS assessment.

44.   On 25 March 2010, a preliminary telephone conference took place with the CARS Assessor. At that time the legal representatives for Allianz requested that the matter be adjourned. That request was acceded to by the Assessor.

45.   On 27 April 2010, a further telephone conference took place with the Assessor, at which time an assessment hearing was set down for 19 July and 6 August 2010.

46.   On 25 August 2010, a CARS Assessment certificate pursuant to s 94 of the MAC Act was issued to the parties.

47.   On 15 September 2010, after considering the CARS certificate, the plaintiff instructed Mr Masselos to commence court proceedings. Mr Masselos took annual leave between 17 September 2010 and 27 September 2010. No criticism was directed at any delay occasioned during that period. On his return from leave, Mr Masselos commenced the preparation of this application, following which the summons comprising this application was filed in this court on 19 October 2010.

48.   It would seem that consequent upon the concession made on behalf of the defendant concerning the content of the plaintiff's application for general assessment, the material period for a consideration of the effects of delay and as to whether there has been a full and satisfactory explanation for such delay is the period between the plaintiff's discharge from Nepean Hospital on 28 June 2005 and the timing of the lodgement of the CARS application on 4 December 2009, an aggregate period of some 4 years and 18 weeks.

49.   The foregoing events will be examined for their significance to the issues calling for decision in the present application.

Applicable legislation

50. Section 109 of the Motor Accidents Compensation Act 1999 provides that in the circumstances of this case, the plaintiff is not entitled to commence proceedings without the leave of the court. Section 109(3)(a) also provides that the court must not grant leave to commence proceedings unless the plaintiff provides a full and satisfactory explanation for the delay in commencing proceedings.

51. Section 109(3)(a) requires a consideration of section 66(2) in which a full and satisfactory explanation for delay is defined as being a delay, which a reasonable person in the position of the plaintiff would have experienced in the circumstances.

52. Section 109(3)(b) provides that the plaintiff must also show that the amount of damages awardable to the plaintiff is likely to be not less than 25 per cent of the maximum amount that would have been awardable under s 134 of the Act, as at the date of injury. In this instance, the defendant conceded that the plaintiff has satisfied the requirements of that threshold.

53.   In the paragraphs that follow, I shall address the remaining issues calling for decision.

Issue 1 - Whether the explanation was full and satisfactory

54.   On behalf of the defendant it was submitted that the explanation proffered on behalf of the plaintiff in respect of the procedural delay incurred in pursuing the claim was neither full nor satisfactory. It was therefore submitted that on this ground, the plaintiff's application should be dismissed.

55.   In this regard, it was argued that in the period up until 4 December 2009, which was when the plaintiff lodged her application for general assessment, the defendant did not know what the plaintiff's claim was, and accordingly, it was asserted, the defendant did not know what medico-legal investigations were appropriate in order to meet the plaintiff's medical case.

56.   It was further argued on behalf of the defendant that because the solicitor for the plaintiff had not formally answered Allianz's letter of request for particulars dated 8 September 2005, Allianz had insufficient information to know the extent of the plaintiff's injuries and the extent of the claims being made by the plaintiff as a consequence of those injuries.

57.   In this regard, in submissions made on behalf of the defendant, reference was made to the submission by Mr Hanna at paragraph 20 of his affidavit; which I have previously cited, in which it was claimed that despite having some 18 years' experience in advising Allianz regarding motor accident personal injury claims in NSW, he remained unable to advise his client of the validity of several components of the plaintiff's claim, citing prejudice.

58.   In the paragraphs that follow, I set out my consideration of the respective arguments concerning first, the complaints concerning the state of the particulars, and secondly, the advent of delay in filing the claim.

Complaints concerning the state of particulars

59.   Notwithstanding that ultimately, Mr Hanna was no longer required for cross-examination on the content of his affidavit, for the reasons that follow, on the evidence adduced on the application, in this instance, I consider the arguments advanced on behalf of the defendant regarding complaints concerning the state of the particulars, to be flawed.

60.   First , on 26 August 2008, independently of any view subsequently identified by Mr Hanna as to whether or not he was able to advise his client on the components of the plaintiff's claim, Allianz had obviously formed its own view of the plaintiff's entitlement to various heads of damage. This is evident from the terms of the offer of settlement made by Allianz on that date. Whilst the total amount of the offer or the components making up the total amount of the offer were not in evidence, the heads of damage that comprised the insurer's offer were in evidence. These were identified as being non-economic loss, past and future economic loss, past and future medical expenses and legal costs. Although that time there was no identified claim for domestic assistance, I do not regard this is a matter of significance as it was obviously a matter referred to in the medical evidence that was available at that time. For example, in her report to Allianz dated 21 July 2008, Dr Trmcic informed the insurer that the plaintiff was to a degree, incapacitated to fulfil her mother role, noting this could have further impact on the future of her children.

61.   Secondly , I accept the submission made on behalf of the plaintiff that when the evidence is examined as a whole, it was plain that the insurer was not hindered by any formal non-reply to a letter requesting particulars, which clearly had been overtaken by events. This is apparent from the nature and extent of the medical evidence served by the parties upon each other over the course of time, the nature of the particularised injuries advised by the plaintiff in her original claim form, the analysis by Allianz of the medical evidence as communicated in correspondence to the solicitor for the plaintiff, and the awareness by Allianz of the total extent of the plaintiff's treatment expenses, which it had paid over time in the total amount of $18,919.71.

62.   Thirdly , on 23 February 2010, the insurer's complaint concerning the state of the particulars had already been formally ventilated within the statutory mechanisms provided by the MAC Act and administered by the MAA, and relevantly, those complaints were rejected by the Principal Claims Officer of CARS. That rejection was in the following terms, which I accept as valid:

"If the insurer was concerned about the quality of the information it had and the particulars that had or had not been provided the Insurer could have requested more information under section 82(6) or 85 or it could have lodged an application for special assessment of a dispute under section 96(1)(e) but it did not, it made an offer of settlement. If the insurer was of the view injuries had not stabilised it could have referred the matter to MAS but it did not, it made an offer."

63.   On the issue of the insurer's claimed dissatisfaction with the state of the particulars, it is telling against the insurer's argument, that the insurer did not seek to pursue its statutory remedy on the issue, as was available to it within the statutory framework of the MAC Act , and as was identified by the Principal Claims Officer, when she rejected that argument on 23 February 2010. In this regard, I accept the argument made on behalf of the plaintiff, that it is also telling against Allianz that it did not seek judicial review of the decision of the Principal Claims Officer.

64.   Fifthly , I consider that the unchallenged affidavit of Mr Masselos, which was sworn on 12 January 2011, effectively and satisfactorily answers the complaints raised by the defendant concerning replies to correspondence relating to requested particulars. In doing so, it refers to and provides material that redresses what Mr Masselos identified as a selective imbalance in the correspondence identified in the affidavit of Mr Hanna. Mr Masselos redressed that imbalance by annexing further relevant correspondence that provides a more complete picture.

65.   In this regard, when the entire course of annexed correspondence dated 8 September 2005, is examined, it is plain that Allianz's 8 September 2005 request for particulars which the defendant's argument relied upon, was issued at a time which was less than 3 months after the plaintiff's injury, and at a time when her condition had not stabilised, and when the parameters of her claim were not fully apparent. Accordingly, as that state of affairs remained the position for some considerable period of time, it was not surprising that no particulars had been provided by the time Allianz again wrote to the plaintiff's solicitor on 6 July 2006, again inviting the supply of particulars.

66.   I accept Mr Masselos' explanation that in the period from 6 July 2006, until 11 January 2009, when Mr Masselos received his first letter from Mr Hanna, no further correspondence was received from the insurer seeking a formal reply to the earlier requests for particulars.

67.   In my view, by that time, those earlier requests had in any event been overtaken by other events. Allianz was in possession of medical reports and material that had indicated the nature and severity of the plaintiff's claim for injury and its effects upon her. It was also aware of the names of the treating doctors. Authorities for the supply of information had already been provided by the plaintiff. I consider that the matters set out in paragraphs 1-27, of Mr Masselos' affidavit sworn on 12 January 2011, and which addresses the detail of the correspondence requests for information, be a sufficiently complete answer to the defendant's complaints concerning delays the provision of particulars, and the claimed deficiencies in the particulars.

68.   In my view, the defendant cannot validly complain, simply because there was a failure to answer, in a particular form, a letter of request for information, where reference to the course of correspondence between the parties, as set out by Mr Masselos, shows the information the defendant was entitled to receive, had in fact been provided, albeit in piecemeal form.

69.   In any event, it was conceded on behalf of the defendant, that by 4 December 2009, the material assembled in the plaintiff's CARS application was sufficient for the defendant's insurer to know the case that it was required to meet. By that stage, metaphorically speaking, water had passed under the bridge concerning the historical complaints over the state of the particulars, as was observed by the Principal Claims Officer on 23 February 2010, at the time she rejected those complaints.

70.   In my view, the end point of the analysis of the complaints over particulars is aptly summed up in paragraphs 24-27 of the affidavit of Mr Masselos sworn on 12 January 2011, in the following terms:

"24. In response to the letter of Dibbs Barker dated 7 October 2010 (Hanna, M ) on 11 October 2010, I again wrote to the (sic) Dibbs Barker regarding particulars in the following terms:

'With respect to section 85, we are not aware of any outstanding requests for particulars. We wrote to you confirming this on 14 (sic. 17) June, and we asked you to particularise any requests that you considered remained outstanding. You did not respond to our letter, and indeed the matter proceeded to assessment by CARS thereafter.

Once again, if you allege that there are requests for particulars that remain unanswered, please identify such requests in order that we may obtain our client's instructions in response. As far as we are aware, all of your client's requests have been answered.'

25. The response from Dibbs Barker (Hanna, O ) referred only to its previous correspondence.

26. I again wrote to Dibbs Barker on 13 October 2010 (Annexure D hereto) in relation to the issue of particulars in the following terms:

'We have asked you three times now to specify with precision the information you say remains outstanding, but you continue to respond with vague references to your earlier correspondence. We will rely upon your repeated failures to respond to our requests in defence of any allegation that our client has breached her duty to co-operate under section 85.

...

For the third time, we confirm that we are not aware of any outstanding issue regarding particulars. It appears to us that you are attempting to create a dispute where there is not one . Perhaps rather than continually referring us to previous correspondence that you say remains unanswered, you might simply specify the information you desire from our client that you did not presently possess, in order that we might endeavour to provide it to you.'

27. To this day, I have not received any response to this letter."

[Emphasis added]

71.   Although the complaints raised by the defendant concerning the particulars have been rejected, the plaintiff must nevertheless still provide a full and satisfactory explanation on the substantive issue of the delay that has been incurred in the filing of her claim.

Full and satisfactory explanation for delay

72.   In examining the circumstances of the delay involved in the filing of the plaintiff's claim, it is convenient to start with the unchallenged evidence of the plaintiff.

73.   I find that at all times, including from the outset, in June 2005 and thereafter, the plaintiff relied upon the advice and actions of her solicitor, concerning the due prosecution of her claim for damages. In this regard, the plaintiff's affidavit, sworn on 14 October 2010, clearly indicated that she had entrusted the conduct of her claim to her solicitors. The unchallenged counterpart of the plaintiff's evidence in that regard is found in paragraph 54 of the affidavit sworn by Mr Masselos on 14 October 2010, which was in the following terms:

"54. In respect of my dealings with the Plaintiff, to my observation, she has always relied upon, and has accepted, my advice in respect of the conduct of her claim, and she has at all times diligently complied with my requests that she attend to matters related to the preparation of her claim, even at times when she was clearly struggling emotionally with the tragic consequences of her accident. To my observation, the Plaintiff has not been responsible for any delay occasioned in the preparation of her matter. Her actions in this regard have always accorded with the advice provided to her by me."

74.   The plaintiff's own affidavit provided unchallenged supporting evidence of her emotional struggles, to which Mr Masselos had referred to in paragraph 54 of his affidavit. That evidence was in turn supported by the evidence contained within the successive reports proposed by the plaintiff's treating psychiatrist, Dr Trmcic. As the plaintiff's case is based upon a significant psychiatric component, in order to assess the significance of the delay, it is relevant to examine the tenor of the psychiatric evidence tendered on the application.

75.   Although Dr Trmcic thought the plaintiff's major depression had stabilised at the beginning of 2008, as at early 2009, Dr Trmcic was also of the view that at that time the plaintiff's post-traumatic stress disorder had not yet reached a stage of stabilisation for the purposes of an assessment of permanent impairment under the MAA guidelines. In that regard, Dr Trmcic thought the plaintiff's psychological illness displayed symptoms that were chronic, fluctuating, and easily triggered by external psycho-social factors and events that resembled the plaintiff's initial trauma. In my view, the fact that stabilisation of the plaintiff's condition had not yet occurred at that time, was of great significance to whether the claim should proceed to a CARS assessment at that time.

76.   Significantly, there was no relevant psychiatric opinion tendered to the contrary of these views of Dr Trmcic.

77.   Consistent with the views of Dr Trmcic, a MAS psychiatric assessment report prepared by the consultant psychiatrist Dr Jungfer, on 28 August 2009, relevantly referred to the plaintiff's subsequent prognosis being associated with significant anxiety. The example cited by Dr Jungfer was the plaintiff's refusal to leave her home at the stage of 27 weeks gestation in her subsequent pregnancies. The basis for that position was because of the stated concerns held by the plaintiff, which in turn related to the events of the collision on 20 June 2005. Clearly, on this evidence, the plaintiff's psychiatric condition fluctuated in its intensity, and in its effect upon her.

78.   In this regard, at pp 215 - 216 of the bundle of materials exhibited to the affidavit of Mr Masselos sworn on 14 October 2010, Dr Jungfer's report set out the following summary of the history that had been provided to her by the plaintiff:

"...

She describes that most things hold less value to her now than they did prior to the time of the accident although superficially she appears to continue to present as being appropriately groomed. She does attend to her medication and ensures that she takes her medication. She is avoidant of going out and seeing people particularly those people who knew her prior to the accident because she is concerned that people might ask about the accident and the ongoing consequences of this. She is particularly concerned about people who knew about her first pregnancy and the questions that they might ask. She found it very difficult to return to work because of the difficulties that everyone knew she was pregnant and the questions that they might ask.

She actively avoids talking about the accident and talking about the accident causes her to be acutely distressed. She continues to have traumatic flashbacks to the coffin and the funeral of her daughter. She continues to have flashbacks to holding her daughter a day following her death and a few days later. She has dreams where she continues to dream of the scene at the hospital and also of holding her dead daughter. She avoids the scene of the accident, will drive a longer route to get to St John of God Hospital because of having to go past the scene of the accident. While her grandmother lived at Londonderry she would avoid going to Londonderry because it meant driving past the scene of the accident. She will not be a passenger in a vehicle, she will not sit in the back seat of a car. On the rare occasions she is a front seat passenger she is hypervigilant, anxious and comments frequently on the driver's behaviour to a point where people will stop driving and have her drive because of the extent of her behaviour. She avoids driving needlessly. She drives where she has to go to her appointments, to shopping but tries to avoid driving for leisure purposes because of her anxieties regarding being in a car.

If her husband should take her children to some activity she will ring constantly to check that they are okay and she is anxious while they are away. She tries hard not to stop her children from doing things for fear of their safety and welfare although (she) remains anxious when they are out of her sight.

She goes out less often, she does not socialise. She last went out and met up with friends for lunch a few months ago. She does still attend family functions although this involves very little effort in that most family members live within a few streets from each other. She does not have the same sense of enjoyment at these family activities than she did in the past. She will take the children to the park and the pond, she has a heightened sense of responsibility of being a good mother and so continues to do these things as she sees it as being extremely important that she must be a good mother because of the fact that she cannot be a good mother to Tianne, the child that she lost. Her concentration can be variable and at times she loses concentration and is distractible.

Current and Proposed Treatment

Currently she sees a consultant psychiatrist every eight weeks and has episodic reviews by her clinical psychologist. She takes Sertraline 200mg per day and Quetiapine 50mg at night. Attempts to cease the medication has resulted in a recurrence of her symptoms and there are no plans to currently change her treatment regime."

79.   Significantly, at pp 218 - 219 of the bundle exhibited to the affidavit of Mr Masselos, Dr Jungfer expressed her diagnostic conclusions and her assessment of the plaintiff's condition in the following terms:

"6. Conclusions

Diagnosis and Causation

Miss Kelly Edwards presents with a cluster of symptoms consistent with a post traumatic stress disorder. She was involved in an accident that was frightening which resulted in significant injury, indeed the loss of life of her unborn child. She was hospitalised, had significant pain and suffering following the accident. She has traumatic recollections not specifically to the accident per se but to events surrounding the accident in particular scenes at the hospital and holding her dead child and the child's funeral. The events linked to the accident in my opinion related directly to the accident. She has avoidance behaviour particularly marked avoidance behaviour regarding events that might trigger her thoughts related to the accident or avoidance behaviour of situations where she might have to talk about the accident and its consequences. There has also been a change in terms of emotional functioning with recurrent dysphoric mood, alterations in sleep and social relationships. Her symptom clusters are consistent with that of a post traumatic stress disorder complicated by a major depression condition. The pattern of the emergence of the symptoms, the duration of symptoms and their response to treatment is consistent with known clinical experience of these conditions. In view of her past history of an absence of psychiatric dysfunction and disability it is my opinion that the accident has been the causative factor. The nature of the accident was of sufficient severity to warrant the diagnosis of a post traumatic stress disorder, the pattern of symptoms is consistent with a post traumatic stress disorder. The symptoms are of greater severity than that would be of an adjustment disorder and are not explained purely on the basis of a grief disorder although her grief is pathological and complicates the presentation. The range of her symptoms particularly that of her depressive symptoms in my opinion are more than that of a grief disorder and warrant the diagnosis of a major depressive disorder. They are partially controlled by her pharmacotherapy. There are no complicating factors such as that of substance abuse and no genetic vulnerabilities. It is my opinion that the accident is the sole causative factor."

80.   My view of this body of evidence leads me to conclude that from the time of her injury on 20 June 2005 and until the time Dr Jungfer assessed the plaintiff in August 2009, the plaintiff was beset with significant psychological illness, as was described by Dr Trmcic and Dr Jungfer.

81.   In that time, the plaintiff's primary needs and objectives were to achieve stabilisation of her emotional state, which was the subject of flare-ups on significant occasions on which she was subjected to reminders of her injury and the subsequent neonatal death of her child. Those reminders included aspects of her own subsequent pregnancies, her emotional reactions around the anniversary of the event in question, distressing matters raised with her during questioning in medical examinations, and her need to obtain ongoing supportive psychiatric treatment.

82.   It is plain from the tendered correspondence, that throughout these events, the plaintiff's solicitor was looking after her best interests with regard to the proof and advancement of her claim, albeit that the claim was not filed before the required 3-year limitation period. He did so by appropriately pursuing Allianz, with evidence, seeking a concession that the plaintiff was entitled to damages for non-economic loss. In my view the delay that was encountered during, and as a result of that process, leading up to the lodgement on 4 December 2009 of the application for a CARS assessment, was not unreasonable.

83.   In the circumstances of the delay until 4 December 2009, there are two relevant factors, namely the position with regard to liability, and the concurrent need to define, through evidence, the parameters of the plaintiff's claim for damages.

84.   It seems to me that the factor of liability can be safely put to one side as being of no relevance to the question of whether or not a full and satisfactory explanation has been provided. This is because Allianz had earlier indicated that there would be no issue concerning the question of breach of duty of care. That issue was conceded by Allianz.

85.   The remaining question of the inter-relationship between the damages issues and the requirement of a full and satisfactory explanation is a relevant consideration to the question of whether or not the plaintiff should be granted leave to proceed.

86.   It is appropriate to review some relevant principles that guide the exercise under consideration.

87.   Whether or not an explanation for delay can be seen to be full or satisfactory depended upon the context in which the question arose: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, per Gleeson CJ, at p 645. In examining relevant delay, it is a given that the explanation of the factual context of the delay does not require the solicitor involved in the case to tediously recount and annotate all the facts in affidavit form: Walker v Howard [2009] NSWCA 408, per Allsop P at [104]. This is especially so where, as is the case here, there is no substantive dispute as to the detail of the relevant chronology of events.

88.   That said, in my view, the affidavits of Mr Masselos provide full and satisfactory explanations for the delay. As the plaintiff's solicitor, it was clear that he was concerned to ensure that any damages assessment of the plaintiff's case would include damages for non-economic loss in respect of her significant psychological disabilities.

89. The policy that underpins the gateway requirements of s 109(3) and s 66(2) of the MAC Act is to generally protect insurers against the potential burden posed by late claims. This requires that the initial part of the evaluation of the entitlement of a plaintiff to the grant of leave to proceed must favour the insurer: Walker v Howard , per Allsop P at [103], following Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, [10]-[11].

90.   In my view this requirement to meet the needs of the insurer has been more than adequately addressed in this case because, over a considerable period of time, Allianz had been kept informed of the plaintiff's psychological condition through serial reports from the plaintiff's treating psychiatrist. Furthermore, Allianz has exercised its right to have the plaintiff examined by 3 medico-legal experts, including an examination by Dr Robert Lewin, a consultant psychiatrist. The absence of any report from Dr Lewin from the material tendered on the application, reinforces my view that there is no disentitling conduct on the part of the plaintiff that should be weighed against a claim by the plaintiff for the leave sought to be granted.

91.   In my view the circumstances described in the evidence on this application compel the conclusion that there has been a full and satisfactory explanation for the delay incurred in filing the claim.

92.   On the basis of the unchallenged factual evidence contained in the affidavit of the plaintiff, I have concluded that when the plaintiff instructed her solicitors, she was entitled to assume that her solicitors were looking after her interests, including by observing applicable time limits governing the formalities and time limits within which proceedings were required to be instituted on her behalf: Smith v Grant , per Basten JA at [60].

93.   The evaluation required in this case is not required to extend to a consideration of any alleged blameworthiness arising from the conduct of the solicitor for the plaintiff: Smith v Grant , per Basten JA at [33]. The real question is whether the plaintiff has established an entitlement to a grant of the leave sought.

94.   To the extent that the conduct of the solicitor for the plaintiff is required to be examined, it is relevant to note that on the principal issue of liability, the plaintiff's solicitor would have drawn comfort from the fact that the issue of breach of duty of care had been admitted. Reasonably, this would have directed the attention of the plaintiff's solicitor to the remaining questions concerning a damages assessment, which necessarily required that the plaintiff's whole person impairment be identified, including taking into account relevant psychiatric factors, before her claim was assessed.

95.   At the forefront of any damages inquiry by the plaintiff's solicitor is the question of whether the plaintiff was able to satisfy the assessment requirements for establishing her legal entitlement to damages for non-economic loss. In this regard, it is plain from the conduct of, and correspondence from Allianz, that this was a major item of dispute between the parties. In my view, the solicitor for the plaintiff was entitled to pursue and square away that issue before lodging the CARS application and then instituting proceedings, especially in circumstances where the question of liability was not an issue.

96.   It is plain that the delay in question was occasioned whilst the plaintiff's solicitor was attempting, reasonably in my view and in the best interests of his client, to secure a concession from Allianz to the effect that the plaintiff was entitled to damages for non-economic loss.

97.   It is also plain that Allianz was for a significant period of time, unwilling to concede that issue. In these circumstances I consider that the solicitor for the plaintiff was justified in seeking to resolve the matter of the degree of whole person impairment as a whole before instituting proceedings. This had to be achieved in the CARS assessment process.

98.   In coming to this view, I have considered the submission made on behalf of Allianz to the effect that the plaintiff's solicitor ought to have sought a separate CARS assessment at an earlier point in time, based on the plaintiff's physical impairment alone, in the circumstances where the plaintiff's psychiatric condition had not yet stabilised. I reject that submission as involving a spurious hindsight consideration, especially where it was desirable that multiple applications for assessment were to be avoided, if not discouraged.

99.   In my view the chronology of events in this case demonstrates that this is not a case where the insurer needs to be protected against the potential for injustice that could emanate from the presentation of a stale claim where it is otherwise fair and just to allow the claim to proceed: Salido v Nominal Defendant (1993) 32 NSWLR 524, per Gleeson CJ, at 532. The plaintiff's claim was not stale, her psychological condition had not stabilised to permit an earlier assessment, and this was a matter upon which the insurer had been kept informed.

100. This analysis brings into focus the question of what a reasonable person in the position of the plaintiff would have done in the circumstances, and whether what has occurred in this case, fairly amounts to a full and satisfactory explanation for the delay: s 66(2) of the MAC Act .

101.   Eliminating as irrelevant, the hindsight considerations raised by the defendant's submissions on this issue, I consider that a reasonable person in the position of the plaintiff would have followed the procedural course charted by the plaintiff's solicitor, especially in a case involving such a significant psychiatric disability, as was the case here, with a concomitant dispute over the plaintiff's entitlement to damages for non-economic loss. I consider that a reasonable person in the position of the plaintiff would have done what the plaintiff did, namely to follow the advice of her solicitor.

102.   I do not consider that the approach taken by the plaintiff's solicitor (in seeking to first resolve the outstanding dispute over the extent of the plaintiff's whole person impairment on account of both physical and psychiatric factors before taking the required precursor steps to filing proceedings) to have involved conduct that was either unreasonable, or which would enable the insurer to avoid the need to meet the financial consequences of the plaintiff's claim.

103.   I have arrived at this view because I consider it was the initial conduct of Allianz that set the plaintiff's solicitor on that path. This arose from the Allianz letter dated 18 June 2007, in which it was suggested that no decision could be made by Allianz in respect of whole person impairment, as the plaintiff's psychological condition had not stabilised, and it was therefore premature to make such an assessment : Annexure "B" to the Affidavit of Mr Masselos sworn on 14 October 2010, namely Exhibit "B". In my view, this created the relevant backdrop for the delay that has occurred in this case.

104.   The further administrative delays that arose in pursuit of the CARS process, whilst unfortunate, have no bearing on the matter at issue in this application.

105.   Notwithstanding that the Principal Claims Officer of CARS had, on 23 February 2010, rejected the defence position on the state of particulars, on 11 January 2011, the solicitor for the defendant was still writing to the plaintiff's solicitor on the topic of the particulars, in somewhat vituperative terms, as is evident from the following extract from Annexure "F" to the affidavit of Mr Masselos sworn on 12 January 2011, which was marked as Exhibit "C" on the application:

"...

It follows that where particulars are provided late, inadequately or not at all, the opportunities for early rehabilitation, settlement, and contemporaneous investigation of a claim are lost to the insurer. Those opportunities cannot be recovered even if the particulars are provided subsequently. Prejudice is not cured by providing schedules of damages filled with hyperbole, nor by medico-legal reports from doctors who in the large majority have never treated the claimant.

In cases such as this, where the delay is inordinate and the eventual provision of particulars is minimalistic and incomplete, the situation is considerably worse. When we followed up the outstanding requests, we warned you at the time that a refusal to cooperate with the insurer would be highly inadvisable in the circumstances. You repudiated that advice. The failure to cooperate persists even now, when you are seeking an indulgence from the Court to overcome a statutory limitation. Approaching this application with unclean hands is about as appropriate as the hubris evident in your correspondence.

Your letter seeking particulars of prejudice also seems to suffer from a misunderstanding of section 109, and of limitation applications generally. The proposed defendant is, at this time, not required to make any positive allegation or file any pleading. It is you who must persuade the court that leave should be given.

Your concentration on prejudice as the only aspect to be considered in such an application is equally erroneous. All of the interests of justice are available for consideration. Your prosecution of this claim - and we use the term loosely - is squarely in issue in this matter."

[Emphases added]

106.   It is clear from the terms of that letter from Mr Hanna, that the solicitor for the defendant was seeking to make an issue of the conduct of the plaintiff's case by her solicitor.

107.   When the whole of the circumstances of the plaintiff's case are examined, I do not consider that the plaintiff's solicitor had acted with unclean hands, or with hubris, as was asserted by the solicitor for the defendant, in the correspondence that I have extracted.

108.   I do not consider the solicitor for the plaintiff has allowed procedural mistakes to occur in the circumstances of the evolution of this case. Allowing for the possibility that minds may differ on that issue, the fact remains, that mistakes of the kind asserted, do not, as a matter of necessity, stand in the way of granting the plaintiff leave to proceed: Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 , per Foster AJA at [146]-[147].

109.   For these reasons, subject to a consideration of the issue of whether the delay in question has caused the defendant to be relevantly disadvantaged by delay-based prejudice, I consider that the plaintiff has satisfied the requirement of providing a full and satisfactory explanation sufficient to justify the making of an order granting her leave to proceed, notwithstanding the delay incurred in filing the proceedings.

110.   Accordingly, the remaining substantive question is whether the delay incurred in this case, has operated against the defendant so as to cause significant prejudice in achieving a fair trial of the issues between the parties.

Issue 2 - Whether significant prejudice arises rendering a fair trial unlikely

111.   The defendant has submitted that on the damages issues, it is unlikely that a fair trial of the issues would be achieved by reason of the nature of the issues, and for that reason, the plaintiff's summons should be dismissed.

112.   That argument was developed with the submission that the relevant prejudice to the defendant arose because " ... we're not told of the nature of the claim and how it arises until years after the event ... we can't investigate them, time has past [sic for passed] . We can never investigate them." In this regard it was further submitted that any present day medical investigations of past transient events will only produce opinions of little weight. That submission was not supported by any expert medical opinion. In making this argument, the defendant referred to the principles stated in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

113.   Accepting that to a degree, defendants in such circumstances are almost invariably prejudiced in the retrospective investigation of a claim for personal injury and resultant disability, including for psychiatric injury, especially when the defence investigations are undertaken years after the relevant events have taken place, for the reasons that follow, taking into account the chronology of events that have transpired in the plaintiff's circumstances and claim, I reject the submission to the effect that significant or material prejudice has arisen in this case so as to render it unlikely, from the perspective of the protection of the defendant's rights, that there would be a fair trial in the circumstances.

114.   First , in my view, the terms and content of the damages submissions made by Mr Hanna to the CARS Assessor as set out in Annexure "H" of Mr Hanna's affidavit sworn on 17 December 2010, demonstrate that Allianz was at that time well appraised of the nature of the heads of damage claimed by the plaintiff. In my view the conceded amount of the payment of out-of-pocket expenses to the extent of $17,447.11 at that time, including Allianz's progressive approvals for such amounts to be incurred, indicated that Allianz was sufficiently well armed with information of the basis of the claim made by the plaintiff.

115.   Secondly , Allianz has not only obtained a full complement of historical reports from medical and allied practitioners who have provided treatment to the plaintiff, but Allianz has also had the benefit of obtaining expert medico-legal reports from Dr Robert Lyneham, a consultant gynaecologist, Dr Ian Barrett, a consultant orthopaedic surgeon, and Dr Robert Lewin, a consultant psychiatrist. In resisting this application the defendant did not tender any reports from these experts. I infer from those circumstances, that if any of these experts held the opinion that the effluxion of time had operated to prejudice their facility for evaluating the plaintiff's claims for the purpose of preparing reports to advise the insurer, correspondence to that effect would have been forthcoming and would have been tendered. I infer from the absence of such evidence that the reports by the experts retained by the insurer did not contain material that supported the submission now relied upon by Allianz: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

116.   Thirdly , in my view, awareness by Allianz of the content of the serial progress treatment reports it had obtained from Dr Trmcic, as well the awareness by Allianz of the content of the reports from the MAS Assessors, left it in little doubt as to the medical and factual basis of the plaintiff's claims for damages. In my view, that position is confirmed by the bundle of correspondence from Allianz, which comprises Exhibit "F".

117.   Fourthly , I accept the submission made on behalf of the plaintiff, that the claimed prejudice, based on the state of correspondence as to the particulars which is referred to at paragraph [20] of the affidavit of Mr Hanna sworn on 17 December 2010, does not sit comfortably with the concession made on behalf of Allianz to the effect that the CARS documentation served by the plaintiff on 4 December 2009, represented a sufficiently adequate particularisation of the plaintiff's claim.

118.   The decision of the High Court in Brisbane South Regional Health Authority requires that in cases where significant prejudice to the defendant is shown to exist, leave to proceed should be refused. In my view, the defendant has not proffered sufficient evidence to demonstrate that significant prejudice would arise so as to materially undermine the likelihood of a fair trial : Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, per Sheller JA at [119].

119.   For the foregoing reasons, I therefore reject the submission that relevant prejudice is likely to arise so as to undermine the likelihood of achieving a fair trial between the parties.

Issue 3 - The appropriate order for costs

120.   The remaining question concerns the costs of these proceedings.

121.   On behalf of the defendant it was submitted that in the event that the plaintiff's application for leave to proceed was successful, because the plaintiff was in significant default of the procedural time limit for bringing her claim in a timely manner, as a departure from the ordinary rule, she should nevertheless be ordered to pay the defendant's costs of the summons.

122. The ordinary rule is that costs should follow the event unless it appears that some other order should be made : UCPR, r 42.1.

123.   In contrast, on behalf of the plaintiff it was submitted that costs should follow the event, in the ordinary manner. On behalf of the plaintiff, it was further submitted that on the evidence adduced on the application, the circumstances of the case plainly merited the grant of leave and the defendant could have and should have conceded the plaintiff's entitlement to leave at the outset, which would have avoided incurring substantial costs. In this regard it was submitted that the issue of leave to proceed could have been simply resolved at the outset at a short mention at a directions hearing, with the making of consent orders, rather than by incurring the substantial costs that have evidently been incurred by the parties in gearing up for a full hearing of the summons.

124.   In my view, the plaintiff' submission is correct and I accept it. The plaintiff's application for leave to proceed was compelling. The compelling nature of the plaintiff's application was plainly apparent from the material that was within the possession of Allianz. This was particularly apparent from the content of the cited opinion of Dr Jungfer, the MAS assessor. Whilst it is true that the plaintiff was precluded from proceeding with her claim without first obtaining the leave of the court, the defendant was not necessarily obliged, as a matter of course, to contest the plaintiff's application.

125.   I consider that on the basis of the well settled principles to which I have referred in rejecting the arguments raised by the defendant attacking the fulsomeness or the satisfactory nature of the plaintiff's explanation, it must have been reasonably apparent to Allianz, and to its legal representatives, that at a hearing of the summons, it was more probable than not, that the plaintiff's application was likely to succeed.

126. Notwithstanding that view, Allianz and its legal representatives nevertheless always retained the unfettered right to choose to take an adversarial stance against the plaintiff's application in order to either test or contest the application, and to test or contest the evidence upon which the application was based. That said, as in any litigation involving the adversarial treatment of issues, there is a compelling argument for the proposition that the liability of an unsuccessful party, for the payment of the costs of the successful party, should follow the outcome of the litigated issue in the ordinary manner, as provided for by UCPR r 42.1.

127.   The argument against the foregoing proposition is that the party in default and seeking a procedural indulgence, should have to pay the costs of obtaining that indulgence in circumstances where the conduct of that party, by their omission, has been the cause of the procedural default giving rise to the concomitant need to seek the procedural indulgence. In my view that argument does not necessarily mandate the making of " some other order " as contemplated by UCPR r 42.1.

128.   In balancing the competing arguments, the guiding principle is that there is no prescriptive approach to award costs : Civil Procedure Act 2005, s 98. The basis for an award of costs remains discretionary: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72. Even where the substantive issue in the litigation is open to be liberally construed, the issue of the entitlement of a party to an order for costs must be resolved on a rational basis where the exercise of discretion is required : State of NSW v Stanley [2007] NSWCA 330 at [18]; Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373.

129. In my view the issue of liability for the costs of the application is to be resolved in the plaintiff's favour in the customary manner, namely, following the outcome of the substantive issue in the summons. I consider this to be the appropriate order not only because of the operation of UCPR r 42.1, but because Allianz exercised a choice as to whether or not to contest the plaintiff's application in the face of evidence that compelled the granting of leave. In those circumstances, in my view, the legal consequence of making that choice, is that Allianz should pay the costs incurred by the plaintiff in obtaining the orders that were, in my view compellingly inevitable in the circumstances.

Disposition

130.   The plaintiff has made out her entitlement to the grant of leave to proceed and to file her proposed statement of claim. I consider that the plaintiff's pursuit of that entitlement is unlikely to significantly prejudice the defendant's right to a fair trial of the damages issues raised in the proceedings. I also consider that the plaintiff has made out her entitlement to an order that the defendant pay the costs of the application on the ordinary basis, unless otherwise ordered.

Orders

131.   I make the following orders:

(a)   The time for the plaintiff to commence the proposed proceedings is extended until 18 February 2011;

(b)   The defendant is to pay the plaintiff's costs of the summons;

(c)   The exhibits may be returned;

(d)   Liberty to apply on 7 days notice if further orders are required .