Keen v Nominal Defendant

[2011] NSWDC 173

District Court

New South Wales

Medium Neutral Citation:

Keen v Nominal Defendant [2011] NSWDC 173

Hearing dates:

27 October and 4 November 2011

Decision date:

10 November 2011

Jurisdiction:

Civil

Before:

Judge Peter Johnstone

Decision:

Plaintiff's motion allowed

Motion of second proposed defendant dismissed

Catchwords:

TORT - motor accident - failure to make a claim within 6 months - whether the plaintiff provided a full and satisfactory explanation for the delay

Legislation Cited:

Motor Accidents Compensation Act 1999

Cases Cited:

Ellis v Reko Limited [2010] NSWCA 319
Walker v Howard [2009] NSWCA 408

Category:

Interlocutory applications

Parties:

Wayne Barry Robert Keen (Plaintiff)
Nominal Defendant (First Defendant)
Kerry Robert Bullen (Proposed Second Defendant)

Representation:

Mr A Campbell of counsel (Plaintiff)
Mr Hickey (First Defendant)
Mr J Gracie of counsel (Proposed Second Defendant)
Benjamin & Robinson (Plaintiff)
Curwoods Lawyers (First Defendant)
Rankin Nathan Lawyers (Proposed Second Defendant)

File Number(s):

2009/338517

Publication restriction:

None

REASONS FOR Judgment

1. The plaintiff was injured in a motor accident on 23 December 2008. He commenced these proceedings against the Nominal Defendant on 10 December 2009 , alleging that the accident was caused by the driver of an unidentified vehicle.

1. A year and a half later, on 30 June 2011, the plaintiff filed a motion seeking leave to file an Amended Statement of Claim joining Mr Bullen as a second defendant to the proceedings.

1. The proposed second defendant opposes the plaintiff's motion. He filed a counter motion on 31 August 2011 seeking dismissal of the plaintiff's motion. He says that the plaintiff is not entitled to commence or maintain proceedings against him because the plaintiff did not give notice of any claim against him within 6 months of the motor accident, and has not provided a full and satisfactory explanation for that delay: s 72 and s 73 of the Motor Accidents Compensation Act 1999 (the MAC Act) .

The issues for determination

1. A claim in respect of injury received in a motor accident must be made within 6 months of the accident: s 72(1) of the MAC Act . 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: s 73(5) of the MAC Act . A claim may, however, be made more than 6 months after the accident if the claimant provides a full and satisfactory explanation for the delay in making the claim: s 73(1) of the MAC Act .

1. The plaintiff made a claim against the Nominal Defendant within the prescribed 6 month time limit by lodging a Personal Injury Claim Form with the Nominal Defendant on 26 February 2009. But the plaintiff did not make a claim against the proposed second defendant, Mr Bullen, until 30 April 2010, that is, some 16 months after the accident.

1. At the hearing of the motions on 27 October 2011, the plaintiff relied upon affidavits made by his lawyers: an affidavit made by Mario Piperides of 30 August 2011 and an affidavit of Zacharia Mwangi made on 31 August 2011, for the explanation as to the delay in making the claim against Mr Bullen. Annexed to Mr Mwangi's affidavit was a statutory declaration made by the plaintiff on 21 October 2010.

1. Neither solicitor was required for cross-examination, and their evidence was unchallenged. The plaintiff, however, was cross-examined on his statutory declaration.

1. The essence of the explanation proffered by this evidence was that it was only when the plaintiff attended a conference with Mr Andrew Campbell of counsel on 8 March 2010 that he became aware that he might have a claim against the proposed second defendant in addition to his claim against the Nominal Defendant. Thereafter, steps were taken to lodge a Personal Injury Claim Form against the third party insurer of the proposed second defendant, and this was lodged within some 7 weeks.

1. It was contended for the plaintiff that this explanation was both full and satisfactory. The proposed second defendant contended that the explanation was neither full nor satisfactory.

1. A reference to a "full and satisfactory explanation" is dealt with in s 66(2) of the MAC Act , which provides:

"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 providing of 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."

1. Following the hearing on hearing on 27 October 2011, I reserved judgment. Within a few days, however, the plaintiff sought leave to re-open his case. That application came before me on 4 November 2011 when, by consent, a second affidavit made by Mario Piperides on 28 October 2011 was read, without opposition. Mr Piperides was not required for cross-examination, and I was informed that counsel for the proposed second defendant did not wish to make any further submissions on this new evidence.

1. In this second affidavit, Mr Piperides, provided further material by way of explanation for the delay, to which I will refer more fully below. The substance of his affidavit was to the effect that prior to the conference with counsel on 8 March 2011 he was not aware that the proposed second defendant might have been at fault so as to give rise to the need to advise the plaintiff to lodge a claim form against Mr Bullen as well as the Nominal Defendant. Nor did Mr Piperides discuss with the plaintiff, prior to that co nference, a possible claim against the proposed second defendant.

1. The issues for determination may be shortly stated:

• Was the account of the conduct, including the actions, knowledge and belief of the plaintiff, from the date of the accident until the providing of the explanation, a full account?
• Would a reasonable person in the position of the plaintiff have been justified in experiencing the same delay?

1. I will turn now to set out the relevant factual background.

Factual background

1. Following his accident on 23 December 2008, the plaintiff first consulted a solicitor on 11 February 2009, when he had a meeting with Mr Piperides of Benjamin and Robinson.

1. According to Mr Piperides, the plaintiff told him that the accident occurred when he was travelling in his vehicle in a southerly direction along the Bruxner highway in the vicinity of Ravensworth. An unidentified vehicle, which had been travelling in a northerly direction veered and crossed into the plaintiff's lane causing him to take evasive action to avoid an imminent head-on collision. As a result, the plaintiff's vehicle collided with a truck that was also travelling in a southerly direction "in the merging lane" adjacent to the lane in which the plaintiff's vehicle had been travelling. The driver of this truck is the proposed second defendant.

1. According to the plaintiff's statutory declaration, he told Mr Piperides the accident was caused by an unidentified vehicle which seemed to cross over into his lane and was coming towards him and as a result caused him to crash into the truck being driven by the proposed second defendant, which was coming out of a side street and merging into his lane. He was advised to make a claim against the Nominal Defendant, and did so.

1. There was nothing in the first affidavit of Mr Piperides, or the statutory declaration of the plaintiff, that explained what advice, if any, was given to the plaintiff about a potential claim against the proposed second defendant, the driver of the truck that the plaintiff's vehicle collided with, by reason of the evasive action taken. The result was that the court was left to speculate about whether the plaintiff was given any advice at all, by his solicitor, about the possibility of joining the truck driver to the proceedings, and if so, what that advice was.

1. It was not until the reading of Mr Piperides' second affidavit that this mystery was explained, when it was revealed that Mr Piperides did not give the plaintiff any advice about a potential claim against the proposed second defendant. Mr Piperides said:

"When the Plaintiff first contacted me on 11 February 2009 he told me that the accident was caused by an unidentified vehicle travelling in the opposite direction.

At that stage I was aware that the Plaintiff's vehicle had collided with a truck prior to running off the road.I did not attach further significance to this as the Plaintiff's instructions were that he collided with the truck as he was attempting to swerve to avoid colliding with the oncoming approaching unidentified vehicle. Accordingly steps were taken to proceed against the Nominal Defendant.

At no stage prior to the Counsel's conference on 8 March 2010 did the Plaintiff and myself have a discussion involving a possible claim against the truck driver.

At the initial conference with the Plaintiff had I believed that the truck driver was at fault I would have advised the Plaintiff to immediately lodge a claim form against the driver of the truck.

W hen Counsel conferred with the Plaintiff on 8 March 2010, Counsel had available to him other documents provided by the NSW Police Service which suggested that the truck did not remain within the merging lane. That statement was not available to me at the initial conference with the Plaintiff."

1. In his supplementary oral evidence given before me at the hearing on 27 October 2010, the plaintiff was asked when he first contemplated he might have a claim against the driver of the truck. He said it was a few months after seeing Mr Piperides, who told him that the possibility of a claim against the truck driver should be looked at. The unchallenged evidence from Mr Piperides was that this did not occur. I prefer the evidence of Mr Piperides. As a solicitor, his recollection is more likely to be accurate, and I accept that if Mr Piperides had become aware, prior to the conference on 8 March 2011, of the suggestion that Mr Bullen's truck had crossed over from the merging lane into the lane in which the plaintiff's vehicle was travelling, more probably than not he would have taken steps to ensure that a claim form was promptly lodged with the third party insurer of the truck, to protect the plaintiff's position.

1. I am satisfied, therefore, that it was not until the plaintiff attended the conference with the barrister retained, Mr Andrew Campbell, on 8 March 2010 that he was told there was a reasonable cause of action against the truck driver "for turning out of Quarry Road and merging into my lane when it was not safe to do so":

"This was the first time that I had considered that the driver of the truck was negligent and I instructed my solicitors to immediately lodge a claim form against the relevant third party insurer for the truck..."

The relevant legal principles

1. The full account required by s 66(2) of the MAC Act is not limited to the claimant personally, without regard to those who acted on his behalf, in so far as that conduct was relevant to the delay: Walker v Howard [2009] NSWCA 408 at [72] and [106]. Nor is it limited to actions and it must include the knowledge and belief of the claimant: at [77].

1. The word "full" has been held to be a word that must be given its semantic significance, and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious: Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]. The explanation must address acts and omissions relevant to the delay, so as to enable the court to evaluate the reasons for the delay.

Findings and conclusions

1. The material now before me provides what in my view is a full account of the actions undertaken by the claimant and his solicitors, and informs me as to the knowledge and belief of the claimant prior to the conference with counsel on 8 March 2010. In realistic terms, the plaintiff had no knowledge as to a potential claim against the proposed second defendant. It was his belief that it was the driver of the unidentified vehicle who caused his accident.

1. So far as the solicitors were concerned, the question of possible fault on the part of the truck driver did not occur to them. To be fair to them, it was not until the material obtained from the police became available and was considered in detail by counsel that the possibility became clear to anyone.

1. The reason for the failure to make a claim against the truck driver before the time it was made has now been fully explained. In short, the explanation for the delay is a full explanation.

1. The next question is whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. Obviously, if the solicitors advising the plaintiff did not know he might have a claim against the proposed second defendant, and gave him no advice in that regard, the plaintiff was justified in not doing anything before he did.

1. I find, therefore, that the court has been provided with a full and satisfactory explanation for the delay. Accordingly, the plaintiff is entitled to bring and maintain proceedings against the proposed second defendant.

1. The plaintiff's motion therefore succeeds and t he motion filed for the proposed second defendant is dismissed.

1. The costs of the motion s should not follow the event.

1. Up until the plaintiff's case was re-opened, the explanation for the delay was in my view less than full. It was not until the reading of Mr Piperides' second affidavit that a full explanation was provided. In those circumstances, I consider, in the exercise of my discretion as to costs, that the plaintiff should pay the costs of the proposed second defendant in respect of both motions.

1. I therefore order that the plaintiff be given leave to join Mr Bullen as the second defendant, and to file the proposed Amended Statement of Claim annexed to his motion filed on 30 June 2011.

1. I order the plaintiff to pay the costs of the proposed second defendant in respect of both motions.

Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.

Decision last updated: 28 November 2011