Fitzpatrick v Cervo

Case •

[2020] NSWDC 619

•

12 October 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Fitzpatrick v Cervo [2020] NSWDC 619
Hearing dates: 1 October 2020
Date of orders: 12 October 2020
Decision date: 12 October 2020
Jurisdiction:Civil
Before: Dicker SC DCJ
Decision:

The Notice of Motion filed on 26 May 2020 is dismissed.

Catchwords:

TORTS – negligence – motor accident claim – failure by the plaintiff to make a claim within six months after the date of the accident – application by the defendant to dismiss the proceedings – whether the plaintiff has provided a full and satisfactory explanation for the delay in making the claim

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Buller v Black [2003] NSWCA 45

Choukor v Spiroski [2016] NSWDC 358

Dijakovic v Perez [2015] NSWCA 174

Hunter v Roberts [2019] NSWCA 116

Karambelas v Zaknic (No 2) [2014] NSWCA 433

Lyu v Jeon [2012] NSWCA 446

Category:Procedural and other rulings
Parties: Daniel Joseph Fitzpatrick (Plaintiff)
Carlo Joseph Cervo (Defendant)
Representation:

Counsel:
B Jones (Plaintiff)
M Nesbeth (Defendant)

Solicitors:
Stacks Goudkamp (Plaintiff)
Barry Nilsson Lawyers (Defendant)
File Number(s): 2020/00126235

Judgment

  1. Before the court for determination is a Notice of Motion filed on 26 May 2020 by the defendant in the proceedings, Mr Carlo Cervo, seeking orders pursuant to s 73(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”), that the Statement of Claim filed on 28 April 2020 be dismissed with consequential relief. By the Statement of Claim filed on 28 April 2020, the plaintiff, Mr Daniel Fitzpatrick, brings a claim under MACA for damages for personal injuries allegedly suffered by him as a result of the negligence of the defendant in causing a motor accident which occurred at approximately 1:30pm on 1 July 2017. It is alleged that the plaintiff was driving a truck towing a trailer in Queanbeyan in the State of New South Wales when the defendant collided with the trailer of the truck whilst driving his BMW motorcycle at excessive speed.

  2. An unusual aspect of the accident is that the plaintiff's claim is solely for alleged psychiatric injuries said to result from the accident. There is no claim for damages for physical injuries. It is alleged that the plaintiff's psychiatric injuries were caused by the negligent driving of the defendant of his motorcycle.

  3. By an Amended Defence filed 22 June 2020, the defendant denies negligence, does not admit the injuries claimed and pleads contributory negligence.

  4. The proceedings were commenced less than three years after the date of the motor accident and, accordingly, there is no breach of s 109(1) of MACA by the plaintiff. However, it is not in issue between the parties on the application that there has been a breach by the plaintiff of s 72(1) of MACA in that the plaintiff's claim as a result of the accident was not made within six months after the relevant date for the claim being the date of the motor accident to which the claim relates. The claim should have been made by the plaintiff by 1 January 2018 at the latest, being six months after the date of the accident on 1 July 2017. The evidence shows that the claim was not made by the plaintiff until 29 March 2019 or possibly 9 April 2019 when the claim was apparently received by the defendant’s insurer (although the former date is more likely as the evidence seems to establish that the claim was sent by the plaintiff’s solicitors by way of email).

The relevant statutory provisions

  1. Sections 66(2), 72 and 73 of MACA provide as follows:

“66   Definitions

…

(2)  In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.

72   Time for and notice of making of claims

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

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

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

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

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

(a)  that person is dead, or

(b)  that person cannot be given notice.

73   Late making of claims

(1)  A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

(2)  Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

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

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

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

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

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

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

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

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

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

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

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

Note—

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

A claim generally must be made within 6 months after the date of the accident or the date of death.

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

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

  1. Accordingly, the Notice of Motion filed by the defendant to have the Statement of Claim dismissed on the ground of delay is brought pursuant to s 73(5) of MACA (strictly it should have sought an order that the proceedings be dismissed). Under s 73(7) of MACA, the court must dismiss the proceedings unless it is satisfied that the claimant has a “full and satisfactory explanation for the delay in making the claim”. It is clear from s 73(7), that the onus rests on the plaintiff, being the person who has delayed in making the claim, to provide the full and satisfactory explanation for the delay to the court.

The evidence on the application

  1. In support of the application, the defendant read two affidavits of Alexander Le Hoang dated 6 July 2020 and 29 September 2020, respectively. Mr Le Hoang is a solicitor in the employment of the solicitor for the defendant and has the daily carriage of the proceedings on behalf of the defendant.

  2. Mr Le Hoang's first affidavit provides details of the background to the claim by the plaintiff, the lodgment of his personal injury claim form and correspondence between the plaintiff's solicitors and the CTP insurer of the defendant. The correspondence establishes that by letter dated 27 November 2019, the CTP insurer denied liability for the accident relying on both a denial of fault and the late lodgment of the claim by the plaintiff without an appropriate explanation. The claim form which is annexed to Mr Le Hoang's first affidavit refers to the plaintiff as suffering “trauma”, “PTSD” and “stress” as a result of the accident.

  3. The second affidavit of Mr Le Hoang dated 29 September 2020 annexes certain medical records relating to the plaintiff. These include a printout of a Patient Health Summary from the plaintiff's general practitioner as at 28 May 2019. The relevant references in the medical records include notes of a consultation on 3 May 2018 where the plaintiff was complaining of worsening diarrhoea and abdominal pain. The plaintiff said (as recorded by Dr Arya) that he was under a lot of stress at work which had triggered migraine attacks. Later evidence established that 3 May 2018 was the day after the plaintiff had resigned from the employment which he had at the time of the accident. The notes also record a consultation by the plaintiff with Dr Arya on 26 March 2019 where the plaintiff referred to the accident on 1 July 2017. Dr Arya records the plaintiff's history as stating that he had been affected mentally since the accident and had flashbacks at night time. Dr Arya diagnosed post-traumatic stress disorder (“PTSD”), with there being a reference also to an adjustment disorder. The plaintiff was referred to a psychologist for review. A Mental Health Plan dated 26 March 2019 which was attached to the general practitioner notes referred to the plaintiff's current mental health issues as being adjustment disorder and PTSD, with the plaintiff showing a “hopeless” mood and thought processes which involved “rumination”.

  4. Also attached to the medical records was a letter to GIO CTP claims from Dr Arya dated 9 May 2019, where Dr Arya diagnosed in relation to the plaintiff adjustment disorder, depression and PTSD with the plaintiff's prognosis being “uncertain”. Dr Arya expressed the opinion that the plaintiff needed a comprehensive psychologist assessment “for detailed mental health disability”. There were no later medical opinions in evidence in relation to the plaintiff’s psychiatric condition. However, the plaintiff stated in his first affidavit that he first saw Mr Santiago, a psychologist, for review on 10 April 2019. In a later affidavit, the plaintiff said he could not afford significant continuing treatment.

  5. Also annexed to the second affidavit of Mr Le Hoang, was correspondence between the defendant’s solicitors and Legal Aid New South Wales and a law firm, Maliganis Edwards Johnson. This correspondence relates to the evidence of the plaintiff that he contacted Legal Aid New South Wales and Maliganis Edwards Johnson at different times. The correspondence shows that Legal Aid New South Wales and Maliganis Edwards Johnson had no records relating to the plaintiff's alleged discussions with them concerning either criminal proceedings involving the defendant arising from the accident at which the plaintiff gave evidence or the plaintiff’s accident on 1 July 2017.

  6. The plaintiff read four affidavits on the application. The first affidavit was an affidavit of Thomas Julius Goudkamp, the plaintiff's solicitor, who annexed relevant correspondence. The affidavit establishes that the plaintiff's first contact with Stacks Goudkamp (his current solicitors) was on 22 March 2019 by telephone. After a Ms Goodall of the plaintiff's solicitors gave advice to the plaintiff, a completed claim form was forwarded to the CTP insurer on 29 March 2019 and the plaintiff's solicitors then undertook conduct of the matter on his behalf. In due course, an exemption certificate was issued by CARS on 20 April 2020 which enabled the plaintiff to commence the current proceedings on 28 April 2020.

  7. Three affidavits of the plaintiff were read dated 26 June 2020, 26 September 2020 and 1 October 2020.

  8. It is unnecessary to discuss these affidavits in detail. In summary, the plaintiff gives evidence that:

  1. He was born in January 1986 and is 34 years of age;

  2. He was involved in the accident on 1 July 2017;

  3. The accident has had a profound effect on the plaintiff including his health and well-being and has left him traumatised and “psychologically scarred”. The plaintiff refers to the substantial effect on his family and marriage of the accident;

  4. He undertook long hours of work to try to keep his mind active and to avoid thinking and having flashbacks about the accident;

  5. His eldest son was diagnosed with a serious medical condition four weeks before the accident and he needed frequent medical consultations and assistance with day to day activities which was stressful on the family;

  6. The plaintiff refers to his wife undertaking major knee reconstructive surgery in January 2018 with her requiring lengthy rehabilitation and physiotherapy;

  7. He resigned from his employment at the time of the accident on 2 May 2018 as “work became extremely difficult to handle and eventually [became] too much”;

  8. He changed his jobs due to the accident;

  9. The plaintiff states that for the first 14 months following the accident he had no idea how severe the impact of the accident was on him and he did not understand the feelings and symptoms of stress and intrusive thoughts which he had. The plaintiff states that when he had to give evidence in the criminal proceedings brought by the police against the defendant for negligent driving, he sought advice from Legal Aid and says that he was told that no legal action could be taken by him until the matter had been finalised in court;

  10. The plaintiff states that he called Maliganis Edwards Johnson to get advice but says that they told him that they were “not interested in the case”. He later expanded this in his second affidavit by saying that he was told “they were not interested in my claim and they could not help”. The plaintiff said that he thought that Maliganis Edwards Johnson were unable to help because he could not bring a claim;

  11. The plaintiff gives evidence that he had only made a worker’s compensation claim prior to the accident under which he had been paid weekly benefits but had not made any claim for lump sum compensation. He also gives evidence that he believed that a person could only make a claim for physical injuries in an accident not psychological or psychiatric injuries. Having received the advice from Maliganis Edwards Johnson, the plaintiff said he did not contact other law firms as he did not think he could bring a claim. The plaintiff said that he was not aware that he was able to make a personal injury claim for psychiatric injuries until he spoke to his current solicitors;

  12. The plaintiff's evidence is that he received a call from a Ms Finianos from Allianz Insurance on 18 March 2019 informing him that the defendant had made a claim against him and his employer's CTP insurer. The plaintiff states in his first affidavit that this prompted him to start asking some questions about his own rights. Ms Finianos referred him to Hall and Wilcox solicitors who then referred him to the plaintiff's current solicitors. In paragraph 27 of his first affidavit, Mr Fitzpatrick states that upon being referred to his current solicitors “it was at this stage that I was made aware of being able to make a claim for compensation”.

  1. In paragraph 29 of his first affidavit, Mr Fitzpatrick sets out in summary the reasons for his claim being late including:

  1. “The shocking nature of the accident”;

  2. That he was not in a clear, logical or emotional state of mind for many months after the accident;

  3. Although he was not physically injured in the accident it took him a long time to recognise how badly his psychological state had deteriorated as a result of the accident;

  4. He was not prepared to acknowledge his psychological problems as he wanted to get on with his life;

  5. The medical issues of his son and his wife which he had made a priority;

  6. His difficulties at work in his focus;

  7. He did not receive any advice about his rights and entitlements including from the police officers involved in the criminal proceedings against the defendant;

  8. He only realised he had a right to make a claim following being informed that the defendant was proposing to make a claim.

  1. In his second affidavit, Mr Fitzpatrick expands on his reasons and makes a detailed reference to the symptoms he experienced following the accident including that when he talked about it, he started shaking, his heart started racing and he felt anxious and stressed. He refers in detail to the extreme upset which he felt as a result of the effect of the accident on his marriage and family.

  2. In his third affidavit, Mr Fitzpatrick annexes part of his telephone records which show a record of what he describes as his telephone call with Legal Aid on 23 April 2018. Mr Fitzpatrick said he was unable to find the records in relation to his call with Maliganis Edwards Johnson.

  3. Mr Fitzpatrick was required for cross-examination by the defendant and was extensively, but appropriately, cross-examined.

  4. It should be stated at the outset that Mr Fitzpatrick clearly appeared to the court to be exceptionally anxious in relation to giving evidence and obviously found the experience to be challenging and highly stressful. At times, the plaintiff had difficulty focusing on some of the questions and appeared to be very stressed. On occasions, the court spoke to Mr Fitzpatrick and gave him time to collect himself. This occurred even after the cross-examination had concluded and before re-examination.

  5. The plaintiff was asked detailed questions in relation to, in particular, his dealings with Legal Aid New South Wales, Maliganis Edwards Johnson and Allianz in March 2019.

  6. Counsel for the defendant submitted that the court should find Mr Fitzpatrick to have been “cagey” in relation to his evidence and not persuasive in his explanations. Counsel for the plaintiff submitted that the plaintiff should be accepted as a witness of truth who, in the context of his psychiatric condition and his obvious anxiety in giving evidence, should be held to have done his best to give truthful evidence.

  7. Any comments which I make are, of course, limited solely to the impression formed by me during the course of the plaintiff’s evidence on the application. Overall, I found the plaintiff to be an honest witness who was doing his best to assist the court in his answers. It appeared that the plaintiff had a generally poor recollection in relation to the detail of many of the important conversations he was cross-examined on. His evidence that he contacted Maliganis Edwards Johnson for advice in relation to his whole position including the criminal proceedings was the only part of his evidence which I did not find persuasive. The plaintiff may have telephoned that firm in the context of the criminal proceedings against the defendant. However, I think it likely that the plaintiff's main concern was to determine what his own position was in relation to the accident at the time. Nevertheless, I accept the plaintiff's evidence that:

  1. He believed until he spoke to his current solicitors that he could not bring a claim for psychological or psychiatric injuries as a result of the accident;

  2. He believed until that time that he could only claim for physical injuries in an accident;

  3. He believed the advice from Maliganis Johnson Edwards that they were unable to help and were not interested in his claim, was because he could not bring a claim;

  4. It was only after speaking to his current solicitors in March 2019 that he became aware that he could potentially bring a claim for psychiatric injuries. In my view, the correspondence with Legal Aid New South Wales and Maliganis Edwards Johnson annexed to the affidavit of Mr Le Hoang does not assist the defendant in challenging the plaintiff's credibility and reliability on these issues. The nature of the correspondence with Legal Aid New South Wales and Maliganis Edwards Johnson is consistent with there being no records kept by them in relation to the plaintiff's calls. Some criticism was made in relation to the plaintiff's failure to find telephone records relating to his call to Maliganis Edwards Johnson. I accept the plaintiff's evidence that he has looked for these records without success. I also accept his oral evidence and affidavit evidence that such a phone call in the terms set out occurred. Overall, I accept the submissions by counsel for the plaintiff that in general terms the plaintiff should be accepted as a witness of truth. However, the plaintiff appeared to have an overall limited recollection in relation to a number of matters possibly due to the effects of his psychiatric conditions.

The legal principles applicable

  1. I considered the legal principles applicable to whether a plaintiff has provided a full and satisfactory explanation for the delay in making a motor accident claim in Choukor v Spiroski [2016] NSWDC 358 at [21]-[28]. As in the present case, in Choukor the defendant was the moving party on the motion seeking orders under s 73(5) of MACA. I concluded there that the onus rested on the plaintiff in the sense that to succeed in resisting the claim of the defendant for an order dismissing the proceedings, the plaintiff was required to provide an explanation which fulfilled the requirements of s 66(2) of MACA: at [22]. I also noted that the explanation provided by the plaintiff must be full and must not “pick and choose” the information to be given relevant to the delay: at [23] relying on Buller v Black [2003] NSWCA 45 at [42]-[46]. I noted that the full account required by s 73 of MACA was not limited to the plaintiff personally where the plaintiff could not provide the explanation but may require the delay to be explained by legal practitioners acting on behalf of the plaintiff: at [24]. I quoted Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]-[17] and Dijakovic v Perez [2015] NSWCA 174 at [15]-[19].

  2. In Karambelas at [16]-[17], Meagher JA (with whom Basten JA and Simpson J agreed) stated as follows:

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

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

  1. In Dijakovic at [15]-[19], Gleeson JA (with whom Leeming JA and McCallum J agreed) stated as follows:

“A full and satisfactory explanation

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

16.  First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until “the date of providing the explanation”. In the case of late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic’s explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014.

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

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

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

  1. In Choukor I summarised the principles applicable in paragraph 28 as follows:

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

(a)  The explanation must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. That is the date on which the explanation is first provided. That would be in the present case between 27 April 2013 and 11 December 2015;

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

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

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

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

  1. In Hunter v Roberts [2019] NSWCA 116, Meagher JA (with whom Brereton JA and Simpson AJA agreed) followed the principles summarised by his Honour in paragraphs 16-17 of Karambelas.

  2. In relation to whether any explanation provided is “satisfactory”, s 66(2) of MACA provides that the explanation provided by the plaintiff must be such that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. As stated by me in paragraph 40 of Choukor, the hypothetical reasonable person in the position of the plaintiff is taken to have the injuries which the plaintiff has arising out of the accident. The parties in the present case did not dispute that the test required the characteristics and circumstances of the claimant to be taken into account when applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22]-[23].

Submissions

  1. Detailed written and oral submissions were provided on behalf of the parties.

  2. The defendant submitted, in general summary, as follows:

  1. The court should have serious doubts in relation to the evidence of the plaintiff. While it was accepted that the plaintiff appeared somewhat stressed during parts of his oral evidence, at other times it was submitted that he appeared to be “cagey” and “aggressive”. No satisfactory explanation was given by the plaintiff in relation to why he did not follow up with Legal Aid after the cessation of the criminal proceedings or in relation to his reasons for accepting the advice from Maliganis Edwards Johnson and not consulting other legal solicitors in relation to a claim;

  2. It should not be accepted that the plaintiff spoke to Maliganis Edwards Johnson as he has not produced any evidence in relation to telephone records of the conversations;

  3. There was a lack of evidence of his ongoing psychological problems: written submissions paragraphs 7.16-7.19. The evidence does not establish a serious psychological condition;

  4. There were relevant inconsistencies in the plaintiff’s evidence: written submissions paragraphs 7.1-7.15;

  5. The explanation provided for failing to lodge a claim was neither full nor satisfactory in relation to the extensive period from the time of the accident to March 2019: written submissions paragraph 7.20.

  1. The plaintiff’s counsel submitted, in general summary, as follows:

  1. The plaintiff was clearly very anxious and stressed in giving oral evidence before the court. Despite this, he was convincing and should be accepted as a witness of truth. There is no reason for not accepting his evidence, particularly as to his contacts with Legal Aid NSW and Maliganis Edwards Johnson;

  2. The plaintiff’s evidence should be accepted that until he spoke to his current solicitors he did not believe that he had a right to bring any claim in respect of psychiatric injuries;

  3. No advice was given to him in relation to a claim by Legal Aid during his telephone consultation with them. The plaintiff should be accepted in relation to his evidence of his discussion with a representative from Maliganis Edward Johnson and that he did not believe he could bring a claim. The plaintiff should be accepted that he only realised he could bring a claim when he spoke to his current solicitors;

  4. The plaintiff has set out in detail the reasons for the delay in his affidavit including his own medical problems as a result of the accident and the medical problems of his family. That explanation is “full”;

  5. Whether the explanation of the plaintiff is “satisfactory” has to be seen in the context of the plaintiff’s injuries and characteristics. The plaintiff is not a sophisticated person and he should be accepted that he did not know he could bring a claim for psychiatric injuries. There is no reason to conclude that the plaintiff should have challenged the representative from Maliganis Edwards Johnson when they said that they could not assist him;

  6. Overall, in the context of the case and the plaintiff's personal characteristics, a hypothetical reasonable person in the position of the plaintiff would have been justified in experiencing the same delay;

  7. Accordingly, the plaintiff has provided a full and satisfactory explanation for the delay.

Consideration

The relevant period of the “delay”

  1. The court must assess the explanation provided by the plaintiff. On the above authorities, the explanation must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. That is when the explanation is first provided. Accordingly, the period in question is from the date of the accident (1 July 2017) until the date the plaintiff provided his explanation in his first affidavit filed on 26 June 2020.

  2. Secondly, the explanation must be such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay which is the period during which the claimant was late in making his claim. That is a period commencing six months after the date of the motor accident (six months after 1 July 2017 being 1 January 2018) and continuing until the claim is first made by giving notice to the third party insurer (here that is probably 29 March 2019 but at the latest 9 April 2019).

The circumstances of the plaintiff

  1. I make the following findings in relation to the plaintiff based on the affidavit evidence and his oral evidence:

  1. The plaintiff is a blue collar worker. In giving his evidence, he appeared to be a person of average intelligence and not particularly sophisticated;

  2. The plaintiff has been diagnosed by Dr Arya with adjustment disorder and PTSD. There is also a reference to depression. Although the diagnoses were from May 2019 and earlier, there was no evidence before me that the plaintiff does not still suffer from the psychiatric conditions;

  3. The plaintiff appeared, as indicated above, to be very anxious and stressed in giving his evidence. This is consistent with his affidavit evidence in relation to his symptoms following the accident. I accept, therefore, that the plaintiff was likely not to have approached his symptoms and his position in relation to the accident in a calm, dispassionate and unaffected manner;

  4. I accept the plaintiff's affidavit and oral evidence that until he spoke to his current solicitors he believed that a person could only make a claim for physical injuries arising from an accident and not psychological or psychiatric injuries.

  1. Whether the plaintiff’s explanation is “satisfactory” must be determined in the context of the plaintiff's psychiatric injuries and symptoms which appear to have been in existence from soon after the accident, in the context of other family stressors.

Whether a “full” explanation has been provided

  1. In my view, in the light of the affidavit evidence and the plaintiff's oral evidence, the plaintiff has provided a full account of his actions, knowledge and belief from the date of the accident until the date of providing the first explanation in late June 2020 for the following reasons:

  1. I accept the plaintiff's evidence that prior to March 2019 he was not aware that he could make a claim in relation to psychological or psychiatric injuries arising from the accident.

  2. I accept his evidence that he spoke to Legal Aid and to Maliganis Edwards Johnson as he states in his affidavit. I accept that he was given no relevant advice by Legal Aid in relation to his claim.

  3. I accept his evidence that he was told by the representative from Maliganis Edwards Johnson that they were not interested in his claim, they could not help and he believed that was because he could not bring a claim. I reject the submissions of the defendant to the contrary.

  4. While I am willing to accept that the plaintiff telephoned Maliganis Edwards Johnson primarily to ascertain his own rights and not in relation to his position as a witness in the criminal proceedings, the advice which he was given provided no indication that he had a potential claim arising from the accident. There was no basis for the plaintiff to challenge this advice on his then knowledge.

  5. I accept the plaintiff’s evidence in relation to the other significant stressors in his life from shortly before the accident until the conclusion of the criminal proceedings, including his son's medical condition, his wife's medical condition, his family and marital problems, his devoting himself to his work and his focus on his involvement in the criminal proceedings. While the plaintiff’s explanations in his first affidavit were not detailed, his second affidavit dated 26 September 2020 provided much more detail.

  6. I accept the plaintiff’s evidence as to his symptoms after the accident and how significant these were for him.

  7. The affidavit of Mr Goudkamp explained what had occurred following the plaintiff's current solicitors being involved in the matter from March 2019 including obtaining an exemption to commence the current proceedings.

  8. Although the plaintiff made limited mention of his medical diagnosis, this was expanded on and clarified in the medical records which were in evidence.

  9. I did not consider any inconsistencies as alleged in the plaintiff’s evidence to be significant. The plaintiff’s account in his oral evidence was generally consistent.

  1. Taking into account all of the evidence, for these reasons in my view the explanation provided by the plaintiff to the court was “full” within s 73(7) of MACA.

Whether the explanation provided is “satisfactory”

  1. The issue to be determined is whether the explanation provided by the plaintiff was such that a reasonable person in his position would have been justified in experiencing the same delay being the delay from six months after the accident until March 2019 when the claim was first made.

  2. I take into account the plaintiff’s family medical problems, his stressors at work, the psychological problems which he developed after the accident, his attempts to bury his problems in working, his resignation from his employment which he had at the time of the accident, his dealings with the police as set out in his affidavits, his telephone conference with Legal Aid and his dealings with Maliganis Edwards Johnson. I accept that the plaintiff developed symptoms arising from the accident which had a substantial effect on him. Taking all of these matters into account in the light of the plaintiff’s affidavits, I accept the submission on behalf of counsel for the plaintiff that the plaintiff’s explanation for the delay was satisfactory in all the circumstances.

  3. I find that a reasonable person in the position of the plaintiff having regard to all of the factors which I have mentioned would have been justified in experiencing the same delay. The affidavits of the plaintiff paint a clear picture of a person who was very substantially traumatised by the accident and the subsequent criminal proceedings. He was suffering from PTSD. The plaintiff had significant medical problems in his family with his son and wife. In the light of all these matters in my view the plaintiff’s explanation for the delay was “satisfactory” as defined. A reasonable person in his position would equally have had real difficulties in dealing with the same serious problems and in my view would have been justified in experiencing the same delay.

Conclusion

  1. Taking into account the matters set out above, I am satisfied that a full and satisfactory explanation has been provided by the plaintiff for the delay within s 73(7) of MACA.

Determination

  1. For the above reasons, I make the following order:

  1. The Notice of Motion filed on 26 May 2020 is dismissed.

  1. My preliminary view in relation to costs is that as the defendant has failed in the Motion it should pay the plaintiff's costs of the Notice of Motion as agreed or assessed. I will hear the parties further in relation to costs as they requested at the time of the hearing of the application.

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Decision last updated: 16 October 2020

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Buller v Black [2003] NSWCA 45
Choukor v Spiroski [2016] NSWDC 358
Dijakovic v Perez [2015] NSWCA 174