Hoppe v Holmes
[2007] NSWDC 198
•5 October 2007
CITATION: HOPPE v HOLMES [2007] NSWDC 198 HEARING DATE(S): 4 October 2007 EX TEMPORE JUDGMENT DATE: 5 October 2007 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. I grant leave to the applicant to commence proceedings against the respondent pursuant to s 109 of the Motor Accidents Compensation Act 1999 ; 2.The statement of claim is to be filed and served by not later than 4pm on 26 October 2007; 3.Costs of the motion are reserved; 4.The exhibits are returned. CATCHWORDS: Limitations - Full and satisfactory explanation - Prejudice LEGISLATION CITED: Motor Accidents Compensation Act 1999
Transport Act 1986 s 42(2)(e) (Vic)CASES CITED: Holt v Wynter (2000) 49 NSWLR 128
Itek Graphix P/Ltd v Elliott (2002) 54 NSWLR 207PARTIES: Rhianna Lea HOPPE
Jonathon HOLMESFILE NUMBER(S): Newcastle Plaint 176/07 COUNSEL: M F McDermott - Applicant
J B Turnbull - RespondentSOLICITORS: Rankin Nathan Lawyers - Applicant
Holman Webb Lawyers - Respondent
JUDGMENT
1 Rhianna Lea Hoppe was very seriously injured in a motor vehicle accident on 22 October 2000. Her injuries included orthopaedic injuries and brain damage. At the time she was seventeen years old.
2 She has not commenced proceedings against the defendant and she seeks the leave of the court to do so in accordance with s 109 of the Motor Accidents Compensation Act 1999. The vehicle involved in the accident was registered in Victoria and the Transport Accident Commission of Victoria became involved in processing the claim on behalf of the respondent driver.
3 The application for leave to commence proceedings is resisted by the respondent who argued that the applicant had not provided a full and satisfactory explanation for her delay and that it would be prejudiced if proceedings were commenced at this stage. I also need to consider whether it would be fair and reasonable to grant the leave sought.
4 There was affidavit evidence of the applicant and her mother and her current solicitor. None of the deponents were required for cross-examination and therefore their evidence has been accepted.
Full and satisfactory explanation
5 S 66 (2) of the Motor Accidents Compensation Act 1999 requires that the explanation be a full account from the date of the accident to the date of the explanation and that a reasonable person in the applicant’s position would have been justified in experiencing the delay that has occurred in this case. In respect of the quality of the explanation, the respondent argued that there was no evidence of the initial solicitor to explain why he apparently decided to pursue the applicant’s claim under the Victorian Transport Accident Act, rather than exercising the applicant’s rights in New South Wales. It was accepted by the respondent that the applicant ought not to be held responsible for the conduct of her initial solicitor but it was argued that an explanation from the solicitor remained necessary.
6 There was no evidence in the materials before me that the solicitor did indeed make a decision to pursue the plaintiff’s Victorian rights and to abandon those available in New South Wales. The only evidence is that he told the applicant that her claim was not worth pursuing in the absence of evidence of economic loss.
7 This is therefore not a case such as that in Itex Graphics Pty Ltd v Elliott (2002) 54 NSWLR 207, where the applicant was required to decide which of two optional sets of entitlements to pursue. In this case the applicant retained her rights under the New South Wales scheme, with any compensation paid to her under that scheme to be adjusted to take account of the benefits already paid under the Victorian scheme.
8 The initial solicitor’s full file is available. Much of it is attached to the affidavits in evidence. The applicant’s evidence of advice given or not given by her initial solicitor is corroborated by the evidence of her mother. Neither was cross-examined to suggest that they were advised other than as set out in their affidavits.
9 In the circumstances I do not regard the absence of evidence from the solicitor as of significance to the quality of the explanation.
10 The respondent further argued that the applicant had not explained the delay from 2003, when her first solicitor withdrew, until she consulted her current solicitor in December 2006. Her explanation involved the following points.
1. She was told in March 2001 that her claim had been accepted and thereafter her medical and rehabilitation expenses were met by the Transport Accident Commission.
2. At no stage was she informed by the Transport Accident Commission or her former solicitor that she might have the right to compensation in addition to payment of these expenses.
3. At no stage was she informed of the three year time limit within which to commence proceedings.
4. In February 2003 her former solicitor wrote to her withdrawing his services, citing problems of work load. There was no reference in this letter to the requirement to commence proceedings in New South Wales by October 2003. The former solicitor suggested that she instruct another solicitor. She did not do so because she understood that she was receiving all benefits to which she was entitled.
5.In October 2006 the Transport Accident Commission informed the applicant of its assessment of her entitlement to a lump sum benefit under the Transport Accident Act .
6.This prompted the applicant to seek legal advice in October 2006 and she engaged her current lawyer in December 2006.
7.Since that date the necessary steps have been taken in anticipation that her claim would be dealt with through the New South Wales Claims Assessment Resolution Service.
8.This course changed when the Transport Accident Commission denied liability. Exemption from the CARS process has subsequently been granted.
11 In the light of this evidence I reject the contention that the delay in the commencement of proceedings has not been fully explained.
12 The question remains whether a reasonable person in the applicant’s position would be justified in experiencing the same delay. This applicant was very young at the time of her accident. She was seventeen years old. She suffered a serious injury including brain damage. She was not advised of her rights and she remained ignorant of them. While it is apparent that she had considerable support from her mother after her accident, I accept that this element of the definition has been met.
13 I find that there is a full and satisfactory explanation for the delay.
Prejudice
14 The personal injury claim form was completed and served in accordance with s 72 (1) of the Act in December 2000. It is clear that the respondent was at all times informed of the applicant’s medical condition. Indeed it had sufficient information to allow it to assess her lump sum benefits under the Transport Accident Act.
15 There is no issue between the parties that the applicant’s injuries place her in a category where she exceeds ten percent of a whole person impairment and therefore should her claim proceed, she would be entitled to economic and non-economic loss compensation. There is no issue that the compensation likely to be awarded will exceed twenty-five percent of the maximum amount. The problem is that the driver of the motor vehicle has not been located.
16 The defendant was given the opportunity to provide evidence prior to the hearing of the application but none has been put before the court. There was therefore no evidence of what efforts have been made to locate the driver. There was evidence that he no longer resides at the address provided to the applicant and that he may be a member of the Australian armed forces. If so, it should not be difficult to locate him.
17 The driver’s evidence is required to deal with the circumstances of the accident and issues of contributory negligence.
18 I accept that his absence could cause problems to the respondent in defending the claim. Police records are available and they include statements of various parties, including the driver and other witnesses to the accident. In addition, the driver was convicted of negligent driving causing grievous bodily harm and of mid-range PCA. These records do shed some light on the circumstances of the accident which do not place the driver in a strong position.
19 Taking into account the availability of these records and the absence of evidence that the driver cannot be, rather than has not been located, I have decided that it has not been established that the prejudice to the respondent, should the claim proceed, is such that it could not obtain a fair trial of the issues.
20 As stated by Priestly J in Holt v Wynter (2000) 49 NSWLR 128 at 79: For a trial to be fair it need not be perfect or ideal.
21 As to the question of whether it would be fair and reasonable to grant the leave sought, I have taken into account the absence of significant prejudice and the very serious consequences to the applicant of her injuries. In those circumstances I have decided that it is appropriate to grant the leave sought.
Orders
1. I grant leave to the applicant to commence proceedings against the respondent pursuant to s 109 of the Motor Accidents Compensation Act 1999.
2.The statement of claim is to be filed and served by not later than 4pm on 26 October 2007.
3.Costs of the motion are reserved.
4.The exhibits are returned.
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