Howard v Walker

[2008] NSWSC 451

CITATION:	Howard v Walker [2008] NSWSC 451
HEARING DATE(S):	12/11/2007, 02/05/2008
JUDGMENT DATE :	13 May 2008
JUDGMENT OF:	Hoeben J
DECISION:	I grant leave to the claimant to commence proceedings against Andrew Walker in respect of the motor vehicle accident which occurred in Trail Street, Wagga Wagga on 19 July 2001. Subject to Order 3, each party is to pay his own costs of this application. The plaintiff is to pay the costs of the proposed defendant, Andrew Walker, of the hearing on 12 November 2007.
CATCHWORDS:	Motor Accidents Compensation Act - three year limitation - extension of period - brain damaged claimant - onus of proof - whether "full and satisfactory explanation" of delay - conduct of claimant's family and solicitor - relevance of such conduct.
LEGISLATION CITED:	Freedom of Information Act 1982 (C'th) Limitation Act, 1969 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
CATEGORY:	Procedural and other rulings
CASES CITED:	Blackburn v Allianz Australia Insurance Ltd [2004] NSW 385, (2004) 61 NSWLR 632 Buller v Black (2003) NSWCA 45; (2003) 56 NSWLR 425 Diaz v Truong (2002) 37 MVR 158 at 165 Russo v Aiello (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244, (2006) 67 NSWLR 735
PARTIES:	Leonard James Howard by his next friend Craig McInerney - Plaintiff Andrew Walker - Defendant
FILE NUMBER(S):	SC 12158/2007
COUNSEL:	Mr R Foord - Plaintiff Mr J Turnbull - Defendant
SOLICITORS:	Denniston & Day - Plaintiff Carroll & O'Dea - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Tuesday, 13 May 2008

12158/2007 – Leonard James HOWARD by his next friend Craig McINERNEY v Andrew WALKER and Anor

JUDGMENT

1 HIS HONOUR:

Nature of proceedings
The plaintiff (claimant) moves by summons for an order pursuant to s 109 of the Motor Accidents Compensation Act 1999 (MACA) for an order permitting proceedings to be brought against the proposed defendant, Andrew Walker, more than three years after the date of the motor accident to which the claim relates. That application is opposed.

2 Proceedings were brought by way of Statement of Claim on 3 October 2006 in matter number 20398/2006 by the claimant against Andrew Walker as the first defendant and the Council of the City of Wagga Wagga as the second defendant arising from the motor accident which is the subject of this summons. A notice of motion was brought in the 2006 proceedings seeking the leave of the court under s109 MACA to continue the proceedings against Andrew Walker. Shortly thereafter, it was realised that leave of the court was required before proceedings could be commenced against Andrew Walker and on 29 March 2007 a notice of discontinuance was filed discontinuing the proceedings against Mr Walker. This summons was filed shortly thereafter. The 2006 proceedings remain on foot against the Council.

3 Identifying the pleadings is difficult because the affidavits, which are relied upon to support the summons, have erroneously been given the 2006 matter number.

4 The claim arises from a motor accident which occurred in Trail Street, Wagga Wagga on 19 July 2001. The allegation against Mr Walker is that the motor vehicle which he was driving moved out of its lane while negotiating a roundabout and struck the claimant’s motor vehicle causing it to collide with a telegraph pole. It is common ground that as a result of the accident, the claimant suffered serious brain damage and has been unable to look after his affairs since that date.

5 Section 109 MACA, upon which the claimant relies provides:

“109 (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person— - the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to a claims assessor for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3) The leave of the court must not be granted unless:

(a) the claimant provides a full and satisfactory explanation to the court for the delay, and

(b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.”

6 As can be seen the only issue before the court is whether the claimant has provided a full and satisfactory explanation to the court for the delay in accordance with subs 109(3)(a) MACA. Section 66(2) defines such an explanation as follows:

“66(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.”


Factual background

7 Affidavits have been filed by Phillip John Day, the solicitor on the record for the claimant; Aileen Elizabeth McInerney, the claimant’s mother and Tanya Maree Wales, the sister of the claimant. None of the deponents was required for cross-examination.

8 The claimant was born on 8 April 1970. He was 31 at the time of the accident and is now 38. Following the accident, he was transported to Wagga Wagga Base Hospital and then airlifted to St Vincent’s Hospital in Sydney. After two weeks at St Vincent’s Hospital, he was transferred to the Brain Injury Unit at Liverpool Hospital. He remained there until June 2002. Upon his discharge, he was transferred to the Home of Compassion Nursing Home at Wagga Wagga where he currently resides. Although the Home of Compassion is a nursing home for the elderly, it is the only facility in the Wagga Wagga area which can provide fulltime care for him. Neither his mother nor his sister was able to look after him.

9 In about September 2001 Mr Day was contacted by the claimant’s sister, Tanya Wales. The reason for this initial contact was that demands for the payment by the claimant of outstanding accounts were accumulating and the family sought advice as to what could be done. Mr Day received instructions at that time to investigate whether the claimant had a claim against anyone for the injuries which he suffered.

10 On 12 November 2001 a personal injury claim form was completed and lodged by Mr Day with the Transport Accident Commission, the third party insurer of Mr Walker.

11 By letter dated 11 January 2002 Mr Day requested documents and photographs from the NSW Police Service relating to the accident. On 8 February 2002 Mr Day received a letter from the Police Service advising him to refer inquiries about photographs to its Forensic Services Group. Mr Day wrote to the Forensic Services Group by letter dated 8 February 2002 requesting photographs of the accident.

12 Throughout this period the claimant’s family were still receiving demands for payment from various creditors. On 22 February 2002 Mr Day received a telephone message from the claimant’s sister to the effect that the family was concerned about what was to happen about the claimant’s debts and that a family meeting would be called at the Brain Injury Unit at Liverpool Hospital on 8 March 2002. On 7 March 2002 Mr Day received from the NSW Police Service copies of statements which it had obtained in relation to the accident.

13 On 11 June 2002 Mr Day met with the claimant’s sister and mother, Aileen McInerney, at his office. He discussed with them the contents of the statements received from the Police Service. After the conference Mr Day attended the wrecking yard where the claimant’s motor vehicle had been taken and took photographs of the vehicle. On the evening of 11 June 2002 Mr Day attended the scene of the accident. As a result of seeing the roundabout where the accident occurred, Mr Day concluded that it was important to obtain plans of the roundabout from the Wagga Wagga City Council.

14 On 27 June 2002 Mr Day made a request to the Wagga Wagga City Council under the Freedom of Information Act 1982 (C’th) requesting the production of plans of the roundabout. On 12 July 2002 the Council requested further information, which was provided by Mr Day by letter on 18 July 2002.

15 On 1 July 2002 Mr Day received from the Police Forensic Services Group eighteen photographs which had been taken of the accident. Mr Day paid $246.40 on behalf of the claimant in order to obtain those photographs.

16 On 18 July 2002 Mr Day forwarded a brief to Mr Kahler at Intersafe Group. Mr Day requested that Mr Kahler provide an expert’s report on liability.

17 On 25 July 2002 Mr Day received a letter from the Wagga Wagga City Council, again requesting further information about the request made under the Freedom of Information Act. Mr Day responded by letter dated 7 August 2002. Further correspondence took place in September 2002 between Mr Day and the Council. On 18 September 2002 after payment of $45, Mr Day received a copy of the plans of the roundabout from the Wagga Wagga City Council.

18 Those plans were sent to Mr Kahler on 23 September 2002. On 4 November 2002 Mr Day’s secretary telephoned Mr Kahler to request when a liability report would be available. She was told that the report should be available “in the next couple of weeks”.

19 On 26 February 2003 Mr Day received a telephone message from a Brendan McDougall of Intersafe Group advising that the person who had been working on the expert’s report on liability, Mr Ken King, had suffered a heart attack and would be unable to work on the report for some time. On 4 March 2003 Mr Day’s secretary was advised by Mr McDougall by telephone that Mr King had been discharged from hospital. On 31 July 2003 Mr Day wrote to Mr McDougall at Intersafe Group asking when the liability report would be available. On 8 August 2003 Mr Day’s secretary telephoned Mr McDougall to make the same request. On 19 August 2003 and 22 August 2003 Mr Day telephoned Mr McDougall to find out when the liability report would be available. As a result of the telephone call on 22 August 2003, Mr Day withdrew Mr McDougall’s instructions to prepare an expert’s report on liability.

20 Mr Day met with the claimant’s sister and mother on 3 September 2003. Following that conference, Mr Day telephoned Mr Allan Brown from Civil and Forensic Pty Limited, consulting engineers, to inquire as to his ability to prepare an expert report on liability. On 18 September 2003 Mr Day submitted a brief to prepare an expert report on liability to Civil and Forensic.

21 On 22 September 2003 Mr Day sent a copy of the account from Intersafe Group to the claimant’s sister for payment. On 9 October 2003 Mr Day wrote to the claimant’s sister requesting payment of $3,500 on account of disbursements. On 26 November 2003 Mr Day wrote to the claimant’s sister advising that unless funds were provided, as requested in his previous letter, he would not be able to proceed with the matter on behalf of the claimant. Although it is not expressly stated in the affidavits, I gained the impression that it was the claimant’s sister who was providing instructions to Mr Day.

22 In October 2003 Mr Brown from Civil and Forensic requested a large clear copy of the plan of the roundabout. Mr Day obtained a copy of such a plan from the Wagga Wagga City Council and forwarded it to Mr Brown on 7 November 2003. On 26 November 2003 Mr Day forwarded a further eight photographs which he had received from the NSW Police Service to Mr Brown.

23 It was Mr Day’s evidence that he had advised the claimant’s sister and mother on a number of occasions that proceedings could not be commenced against either the Wagga Wagga City Council or Mr Walker unless there was an expert’s report which supported such proceedings.

24 Because he had not received a reply from the claimant’s sister, Mr Day again wrote to her on 8 January 2004 asking her to attend at his office. When he received no response to that letter, he caused an email to be sent to her on 16 March 2004. That email referred to previous correspondence and advised Ms Wales that the limitation period in relation to the claimant would expire on 19 July 2004. It also advised that unless the expert report could be commissioned and underway, Mr Day would not be able to advise whether the claim would be successful. Mr Day received no response to the letter or the email.

25 It was the evidence of Ms Wales that she understood that the claimant’s case could not progress unless an expert’s report was obtained which explained how the accident had occurred. She said that she separated from her husband in April/May 2003 and left the family home. Nevertheless, she recalled receiving a letter from Mr Day dated 9 October 2003 advising that it would cost approximately $10,000 to do a computer enhanced reconstruction of the accident. She said that at the time she received that letter she could not afford to pay for such a report. Not only had she recently separated from her husband, but she had a small child living with her and was trying to make ends meet as best she could.

26 She understood that Mr Day had paid disbursements in the past but that as of October 2003, he was not prepared to fund further disbursements. Ms Wales could not remember receiving the letter of 26 November 2003. She thought this might have been because the letter had not been redirected to her new address. She did not recall receiving the letter of 8 January 2004 and she did not recall receiving the email. In relation to the email she said that she had not used that email address for a number of years. She said that she did not see Mr Day again until a conference took place on 4 July 2006.

27 It was the evidence of the claimant’s mother that she recalled that she had brief discussions with Mr Day, who explained that it was a difficult case and that an expert’s report was required to explain what caused the accident. She said that over the years Mr Day had requested that she pay some disbursements to help fund the case but she was unable to do so because she did not have the money. She recalled receiving a letter from Mr Day, dated 27 April 2005. This letter requested reimbursement of disbursements incurred by Mr Day’s firm. It also requested a further $3,500 on account of future disbursements. Ms McInerney could not recall why she did not respond to that letter. At that time she did not have money to fund the disbursements and thought that the case would not be going ahead.

28 Nothing seems to have happened in relation to the matter between November 2003, when the photographs were forwarded to Mr Brown, and 27 April 2005. The three-year limitation period under the MACA expired on 19 July 2004.

29 As of 27 April 2005 Mr Day’s firm had paid disbursements of $2,571.90. It was on that date that Mr Day sent the letter to the claimant’s mother previously referred to, which requested the payment of those disbursements and further moneys on account of future disbursements.

30 On 26 April 2005 Mr Day’s secretary had occasion to telephone Mr Brown from Civil and Forensic in relation to another matter. She was told by Mr Brown’s father that Andrew Brown had suffered a stroke in February 2005 and was in rehabilitation. He advised that there would be a delay in the report being prepared.

31 Mr Andrew Brown and Civil and Forensic did not produce a report. At some time between 26 April 2005 and 15 December 2005 Mr Day decided to retain another firm of experts to investigate the matter but the evidence does not disclose when that decision was made.

32 On 15 December 2005 Mr Day arranged for a brief to be forwarded to Mr Fred Schnerring of Jamieson Foley requesting an expert report on liability in relation to the accident. I infer that at some time between 27 April 2005 and 15 December 2005 Mr Day decided to continue to fund the matter on behalf of the claimant. The evidence does not make clear when or why Mr Day made that decision.

33 On 21 April 2006 Mr Day sent an office cheque for $1,100 to Messrs Jamieson Foley. The report from Mr Schnerring was received by Mr Day on 5 June 2006. The balance of Mr Schnerring’s fees of $1,489.40 was paid by Mr Day by office cheque on 26 June 2006.

34 A conference took place between Mr Day, the claimant’s sister and the claimant’s mother on 4 July 2006. As a result of that conference it was decided that the claimant’s half-brother, Craig McInerney, would be his tutor. Thereafter Mr Foord of counsel was briefed to draft a Statement of Claim. On 9 August 2006 a Consent to Act as Tutor was sent to Mr Craig McInerney. There was no suggestion that the matter did not proceed expeditiously from that date.

35 A certificate under s108(1) MACA was issued by the Principal Claims Assessor on 10 January 2007 stating that the claim was “exempt” from assessment. Thereafter court proceedings could be commenced by the claimant against Mr Walker provided the requirements of s109 were met.

Submissions and consideration

36 Smith v Grant [2006] NSWCA 244, (2006) 67 NSWLR 735 is as yet the only appellate decision on these sections. The earlier decisions dealt with similar but different wording in the Motor Accidents Act 1988. Under the earlier legislation the claimant was not the moving party and accordingly it was incorrect to say that there was an onus on a claimant to provide an explanation of the necessary kind (Russo v Aiello (2003) 215 CLR 643).

37 Because the wording of s109 MACA is different, the Court of Appeal has held that a claimant carries an onus in the sense that he or she is the moving party and to succeed a claimant needs to provide an explanation which fulfils the requirements of s66(2) and needs to persuade the court that the explanation was not only full but satisfactory.

38 The proposed defendant submitted that the explanation provided by the affidavits in support of the claimant’s summons was neither full nor satisfactory. He submitted that there were a number of unexplained actions on the part of Mr Day, which rendered the explanation less than full. For example, there was no explanation of why Mr Day had funded the preparation of the claim until the end of 2003, had then allowed matters to lapse until some date between April and December 2005 and had commenced to once again actively pursue the matter and fund it by paying for disbursements.

39 The proposed defendant submitted that the significant delays in the prosecution of the matter, coupled with the way in which the limitation period had been allowed to expire, rendered the explanations by Mr Day and the claimant’s mother and sister unsatisfactory as that term is used in s109. Much greater efforts should have been made to obtain an appropriate expert’s report in a timely manner.

40 It was, of course, implicit in these submissions that the actions of Mr Day, his mother and sister were to be attributed to the claimant so that if the explanation of their actions was not satisfactory within the terms of s 109, the claimant must fail.

41 This assumption in the proposed defendant’s submissions is not supported by Smith v Grant:

“32 This submission appeared to assume, perhaps unnecessarily, that the Court would be required to make a judgment as to the solicitor’s conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the “conduct, including the actions, knowledge and belief of the claimant”, and not that of her solicitor. Nor should the two limbs of the definition contained in s66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether “a reasonable person in the position of the claimant … would have been justified in experiencing the same delay”. That would appear to view the matter from the position of the claimant, and not the claimant’s solicitor. Accordingly what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation.

33 As noted above, the insurer contended that the conduct of a claimant must be taken to include the conduct of her authorised agent, namely the solicitor. To an extent that contention should be accepted. Thus the claimant seeks to rely upon steps taken by her solicitor and, indeed, his omissions. Those are objectively identifiable matters which may form part of a full explanation. However, for reasons given below, it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor (see at 749 [60]). That being so, it follows that an explanation may be a “full explanation” without exploring the blameworthiness, or otherwise, of the solicitor.”

42 Those paragraphs assume that the solicitor is the claimant’s agent. That is by no means clear here. The claimant, as a result of his brain injury, had no capacity to retain a solicitor. At law the capacity of his mother and sister to do so on his behalf is not clear. Neither of them had a power of attorney or any other legal right to act on his behalf. Unlike the situation with an infant, neither had a legal obligation to protect his interests. Whereas Mr Day was retained by either or both the claimant’s mother and sister to act on his behalf, he was not retained by the claimant. Accordingly, it is not clear whether he should be regarded as the claimant’s agent for the purposes of s109.

43 If Mr Day is to be regarded as the claimant’s agent, the focus of the sections still remains upon the conduct of the claimant, not that of the solicitor.

“60 Accordingly, the weight of authority under the 1988 Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd [22] (Beazley JA, Tobias JA agreeing) in relation to the Motor Accidents Compensation Act.”

44 In the particular circumstances of this case I am satisfied that 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” has been provided. It seems clear, as the authorities suggest, from the wording of s 66(2) that the conduct refers not only to the conduct of the claimant but to those acting on his behalf (Diaz v Truong (2002) 37 MVR 158 at 165 [39] – Giles JA). Despite the unanswered questions as to Mr Day’s motivation, the account is full in the sense that it is complete.

45 If Mr Day and the claimant’s mother and sister were not authorized to act on his behalf so as to be his agents, then the nature of his injuries alone provides a full explanation for the delay. If those persons are to be regarded as his agents, the impecuniosity of his mother and sister when confronted with requests for thousands of dollars in order to allow his claim to be investigated is a complete explanation. One can infer that Mr Day’s reluctance to press the first set of experts at Intersafe Group for a report may well have been due to his belief that neither the claimant’s sister nor mother could pay for such a report if a demand for some prepayment was made.

46 The nature of the claimant’s injuries and the particular circumstances of this case create difficulties when considering the issue of “a satisfactory explanation” as defined by s66. As Sheller JA made clear in Blackburn v Allianz Australia Insurance Ltd [2004] NSW 385, (2004) 61 NSWLR 632 there is a difference of opinion in the Court of Appeal as to the meaning of the phrase “the explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay”. Does the Court look only at the claimant personally, having regard to the specific disabilities and circumstances of the claimant, or does the Court have regard to the actions of those acting as agents of the claimant as well? It was not necessary to decide that issue in Blackburn.

47 As Giles JA pointed out in Diaz v Truong the “satisfactory explanation” test postulated by s66(2) is expressed in unusual terms:

“42 … The standard of a reasonable person in the position of the claimant being “justified in experiencing” a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experience of delay must have the quality of a justified experiencing of delay.”

48 Even following that approach, it seems to me that some meaning has to be given to the phrase “in the position of the claimant”. The tentative opinion of Hodgson JA in Diaz and Blackburn is that one looks at the particular position of the claimant with his or her special characteristics. Accordingly, the reasonable person in the position of the claimant that one looks at in this case is a person with brain damage. Since there could be no personal criticism of the claimant’s actions in such a situation, the explanation must be regarded as satisfactory.

49 In Diaz v Truong Hodgson JA expressed himself in this way:

“[96] The complaint may be made that, on the approach I have taken, there will rarely be cases where a claimant under the Act who is a young child and/or is brain damaged will fail to pass the first threshold for obtaining an extension of time. Even if the explanation is one of total neglect by persons acting on his or her behalf, if that is the full explanation, then normally there will be no deficiency in the conduct of the claimant that would prevent the explanation being both full and satisfactory. I do not see that result as contrary to the purposes of the Act. Even in such a case, the court will then have a discretion and will grant the extension only if the interests of justice require it. Such an approach is not an unreasonable balance between the desirability of an early resolution of such matters, on the one hand, and the philosophy of the Limitation Act , postponing the running of time during minority, on the other hand. It also avoids the unsatisfactory prospect of subsequent claims brought by injured minors against their (uninsured) parents, in those cases where the parents caused the delay and have no satisfactory explanation for it, a prospect unlikely to have been intended by the legislature.”

50 Mason P in Buller v Black (2003) NSWCA 45; (2003) 56 NSWLR 425 expressed a similar opinion when he said:

“[61] Section 43A proceeds on the supposition that a reasonable person can be in default yet have a satisfactory explanation for that default. The standard is reasonableness, not perfection, and the reasonableness of a person placed in the actual position of the particular claimant. The ultimate question to whether a reasonable person in that position would have failed to have complied with the duty (to file the claim within six months) or would have been justified in experiencing the same delay.”

51 Support for the approach of Hodgson JA and Mason P can be derived from the following illustration. If the claimant in this case had no relatives and had been transferred from the Brain Injury Unit to a nursing home and left there, there could be no difficulty in him subsequently satisfying s109 for the reasons specified. Why should this claimant be disadvantaged because his relatives took some, albeit desultory, steps on his behalf, and retained a solicitor?

52 In advocating such an interpretation I am of course mindful of the significant qualifications expressed by Basten JA in Smith v Grant at [61]. In that regard I would observe that in legislation which deals with motor accidents where serious injury from high speed impacts is a common occurrence, it would be surprising if brain damaged persons, with no control over what actions were or were not taken on their behalf, were in a worse position than persons whose injuries are such that they can instruct solicitors and evaluate the actions of those solicitors.

53 The resolution of the “satisfactory explanation” test becomes more complicated if the expression “in the position of” is taken to embrace not only the claimant personally, but his agents. As indicated, there is an issue as to whether Mr Day and/or the claimant’s mother and sister should be regarded as his agents in that none of them had any legal responsibility for him, nor were they in law authorised to act on his behalf.

54 On the assumption that Mr Day and/or the claimant’s mother and sister are to be regarded as his agents, is their explanation satisfactory in the sense that a reasonable person in their position would have been justified in experiencing the same delay.

55 Some assistance in resolving that issue is provided by Gleeson CJ in Russo v Aiello at 646 where he said:

“[7] Leaving to one side problems of the kind just mentioned, what would justify a reasonable person in the position of a claimant "experiencing" a delay? It is impossible to give an exhaustive list of possible justifications. Delay in onset of symptoms is one example; and it is an example of some relevance to this case. It is to be noted that what the Act requires is justification for delay; not demonstration that the delay caused no harm. That does not mean that the Act is unconcerned with the presence or absence of prejudice to insurers resulting from delay. The objects referred to in s 40 A include enabling early investigation and assessment of claims, and early information to enable ready prediction of claim frequency and provision for calculation of further premiums. However, while the problems that insurers might experience as a result of delays in making claims form part of the general legislative concern, the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration. … “

56 Insofar as the explanation of the claimant’s mother and sister is concerned it is that they had insufficient money to pursue the claim on his behalf. Would a reasonable person in their position have borrowed money to finance the acquisition of an expert’s report which may or may not have provided evidence justifying the commencement of proceedings on his behalf. Although minds might differ on this question, I am of the opinion that in the circumstances of this case, given the particular position in which the claimant’s mother and sister found themselves, their explanation is satisfactory in the sense that it justifies the delay.

57 Insofar as Mr Day is concerned, he had expended a substantial sum of money in disbursements (at least $2,000 by October 2003). He made requests of the claimant’s sister and mother for the payment of disbursements which had already been incurred and for the payment of future disbursements. His estimate was $3,500, possibly increasing to $10,000 if a computerised reconstruction was recommended by the expert. He received no response from the claimant’s sister. He sent follow up letters and an email and still received no response. It was reasonable for him to send the correspondence to the previous address of the claimant’s sister since there is no evidence that he was aware of her change in marital status or the fact that she had left the matrimonial home.

58 On those facts would a reasonable solicitor in his position have continued to fund the claimant’s claim without express instructions in the hope that an expert report would be forthcoming which would justify the commencement of proceedings? Alternatively, was he justified in taking no further action as a result of the failure on the part of the mother and sister of the claimant to contact him? Does the fact that he decided between April and December 2005 to continue to fund the proceedings affect the reasonableness of his earlier conduct in allowing the limitation period to expire?

59 It is true, as was submitted on behalf of the proposed defendant and as is set out in the factual background, that there were delays in the conduct of this matter by Mr Day. He could have pursued the experts from the Intersafe Group and from Civil and Forensic more assiduously. There is the substantial delay between December 2003 and December 2005 when the request for an expert report was sent to Mr Schnerring. To the extent that the conduct of Mr Day is relevant, it is to be assessed by the hypothetical objective standard of a “reasonable person in the position of the claimant”. In this case a reasonable solicitor in Mr Day’s position, having regard to the impecuniosity of the claimant’s sister and mother and the claimant’s inability to provide instructions.

60 Regard also has to be had to the distinction drawn by Gleeson CJ in Aiello between an explanation which is satisfactory because it justifies the delay and an explanation which excuses the delay. Justification in that context seems to mean that the relevant delay was reasonable in the circumstances. The example given of a delay in the onset of symptoms is an illustration of what his Honour had in mind.

61 In this case Mr Day was retained by relatives of the claimant to advise in relation to demands for payment of debts incurred by the claimant. He also received instructions to investigate whether the claimant had a cause of action in relation to his accident. One can infer that it must have been made clear to Mr Day at that conference that neither the claimant’s mother nor sister had funds to pay for such an investigation.

62 No criticism has been levelled at Mr Day in relation to his collection of information. It is his failure to more actively pursue a report from the Intersafe Group between July 2002 and 22 August 2003 which is criticised. That criticism has to have regard to the fact that in February 2003 the person who was apparently working on the expert report suffered a heart attack and that only so much can be done by a solicitor to press for the production of a report from a third party. One can infer that Mr Day may have been reluctant to press too forcefully in case some interim payment was requested by the expert.

63 Thereafter any delay seems to be due to the inability of the claimant’s mother and sister to pay disbursements and in the case of his sister, to respond to correspondence sent by Mr Day. It seems to me that a reasonable solicitor in the position of Mr Day in those circumstances was justified in not paying further monies, to obtain an expert report and in not pressing the second firm of experts, Civil and Forensic, to produce a report. This is particularly so when the report being sought was of a preliminary nature to determine whether a cause of action was available. This is not a case where, being aware of the existence of a good cause of action, a solicitor allows a matter to get out of time.

64 I have concluded that to the extent that it is relevant, the explanation of Mr Day of how the delay occurred is satisfactory and that he was justified in not taking the matter further between December 2003 and December 2005. That conclusion is not altered because in December 2005 Mr Day resumed paying disbursements so that an expert report could be obtained. This was generous of him but it does not indicate that his unwillingness to pay such monies at an earlier point in time was unreasonable or unjustified.

65 As indicated, I do not interpret s66(2) to expand the concept of “in the position of the claimant” to include agents and representatives of the claimant. However, if that approach is correct, the explanation provided by the claimant’s sister, mother and Mr Day was not only full but also satisfactory for the purposes of s109 MACA. In my opinion the delays which occurred were something which reasonable persons in their position “would have been justified” in experiencing. In reaching that conclusion I have had regard to the objects of the Act “to provide compensation for compensable injuries” and to “encourage the early resolution of compensation claims”.

66 In relation to costs, it was accepted by counsel for the claimant that regardless of the outcome the claimant should pay the costs of 12 November 2007 since it was due to the insufficiency of the evidence available to the claimant that the matter had to be adjourned. In relation to the costs of 2 May 2008, the claimant has succeeded in his application. That having been said, the claimant was seeking an indulgence from the court and the proposed defendant was entitled to test the basis for the application. I have also had regard to the fact that due to the nature of his injuries, there has been no personal fault on the part of the claimant which contributed to the delay. In those circumstances the fairest result is that each party should pay his own costs of the proceedings on 2 May 2008 and of the application generally.

Orders

67 The orders which I make are as follows:

1. I grant leave to the claimant to commence proceedings against Andrew Walker in respect of the motor vehicle accident which occurred in Trail Street, Wagga Wagga on 19 July 2001.

2. Subject to Order 3, each party is to pay his own costs of this application.

3. The plaintiff is to pay the costs of the proposed defendant, Andrew Walker, of the hearing on 12 November 2007.

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