Kheyo v Iglesias

Case •

[2020] NSWDC 323

•

17 June 2020

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Kheyo v Iglesias [2020] NSWDC 323
Hearing dates: 16 June 2020
Date of orders: 17 June 2020
Decision date: 17 June 2020
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraph 72

Catchwords: TORTS – motor accident – statutory requirement to bring a claim within 6 months of date of accident – claimant’s inability to identify other driver until after expiry of time limitation – late claim against defendant – whether “full and satisfactory” explanation – relevance of delay in inquiry by claimant’s solicitor
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66,72, 73
Cases Cited: Brierley v Ellis [2014] NSWCA 230
Hunter v Roberts [2019] NSWCA 116
Karambelas v Zaknic (No. 2) [2014] NSWCA 433
Mancini v Thompson [2002] NSWCA 38
Smith v Grant [2006] NSWCA 244
Walker v Howard (2009) 78 NSWLR 161
Category:Principal judgment
Parties: Mr J Kheyo (Plaintiff)
Mr F Iglesias (Defendant)
Representation:

Counsel:
Mr J Malouf for the Plaintiff
Mr W Reynolds for the Defendant

  Solicitors:
Gerard Malouf & Partners for the Plaintiff
Moray & Agnew Lawyers for the Defendant
File Number(s): 2020/83686
Publication restriction: Nil

Judgment

INTRODUCTION

  1. The plaintiff (the respondent to the application) alleges that he was involved in a motor accident on 18 September 2017 in which he was a front seat passenger. By his statement of claim dated 16 March 2020, he has brought a claim for damages for personal injury arising from the accident. By s 72 of the Motor Accidents Compensation Act1999 (NSW) (the ‘MAC Act’) the period of time in which he was required to bring a claim expired on 18 March 2018. In that period, the plaintiff duly brought a claim against the Nominal Defendant, since he was unable to identify the driver of the vehicle that collided with the vehicle in which he was a passenger. However, after that claim was brought, and after the limitation period had expired for bringing claims, he discovered the identity of the other driver. He then brought a new claim against the defendant on 4 May 2018, a period just over 7 weeks after the time the legislation required him to bring the claim against the defendant. The insurer for the defendant, GIO, sought explanation for the delay and, after multiple explanations and answers to requests for information were supplied to it, rejected the claim. The respondent thereafter commenced this proceeding.

  2. By a notice of motion dated 8 May 2020, the defendant (the applicant) seeks an order pursuant to s 73(5) of the MAC Act for the proceeding to be dismissed. That application is opposed.

  3. The ultimate issue in this application is whether the plaintiff provided ‘full and satisfactory explanation’ for his delay in making the claim. The defendant says that such explanation, or explanations in the aggregate, as has or have been given for the delay in bringing the claim against the defendant, are neither full nor satisfactory.

FACTUAL BACKGROUND

  1. The respondent is now 56 years of age. He arrived in Australia on 1 March 2017. He arrived with very poor English skills and a struggle to read and write English. He has no tertiary education. He has never made any claim for compensation prior to this claim. He said in evidence that he obtained a driver’s licence but thought that this occurred in 2019 after the subject accident.

  2. As indicated, the respondent says he was involved in a motor vehicle accident, when sitting in the front passenger seat, in a vehicle driven by Mr Marven Marrouki. There were no other passengers in the vehicle. At the time, Mr Marrouki had been a work acquaintance of the respondent for 3 or 4 months. He had previously given the respondent lifts in his car to or from work. The car that Mr Marrouki was driving at the time of the accident was the same one that the respondent recalled he received previous lifts in.

  3. The respondent recalled that after the accident, Mr Marrouki exchanged details with the driver of the other vehicle that was thought to have caused the accident. He also recalled that the police and Fire and Rescue personnel arrived at the scene. No ambulance had, however, arrived.

  4. The respondent said that at the time of the accident, he was unaware of his CTP rights and reporting requirements, and that he had no knowledge of any time limits in making a claim or, indeed, any knowledge of the actual process of making a claim. He said he thought that he might be able to claim compensation due to the injuries that were caused by the motor vehicle accident. When it was suggested to him in cross-examination that he knew he might be able to make a claim for compensation at the date of the accident, the respondent clarified that it was the next day, after he had consulted a medical professional, and became aware that he had sustained injuries, that he might be able to bring such a claim.

  5. He accepted, when giving evidence under cross-examination, that he understood that he would need details about the drivers and the cars involved in the accident in order to make such claim. But at the time that a personal injury claim form was lodged against the Nominal Defendant, on 23 January 2018, the respondent could not recall the details of the make, model or colour of Mr Marrouki’s vehicle, let alone the other vehicle thought to be at fault.

  6. The respondent visited the firm Lex Fori Lawyers in November 2017 for the purpose of obtaining legal advice relating to the accident as he was continuing to experience ongoing pain and discomfort from injuries. He deposed in his affidavit to being told that he would need to submit a claim form and being asked if he had the registration details of the vehicle at fault. With apparent reference to Ms Caroline Lazar, a paralegal at Lex Fori at the time, the respondent deposed to informing her that he did not have those details but both of them made a phone call to Mr Marven Marrouki in the hope of obtaining them. The respondent deposed to never having being informed of the six-month limitation period to lodge the claim form in the matter. He deposed that Mr Marrouki had informed them both that he did not remember the registration details of the vehicle at fault. He deposed that Mr Marrouki had explained that all of the information was on his mobile phone, but that phone was broken and no longer worked.

  7. He was referred, when under cross-examination, to the personal injury claim form that he had signed on or about 23 January 2018. As he had said in his affidavit and as was abundantly clear from his cross examination, the respondent required legal assistance to help him to prepare that claim form, on the basis of the information he had provided. The particular person who prepared the claim appeared to be Caroline Lazar. The respondent said that he recalled that someone (apparently Caroline) had pointed out to him the warning that was contained on the covering page of the claim form that “To access any available benefits, you must complete and submit this form within six months of the accident”.

  8. The respondent deposed that he did not report the accident to police within 28 days as he was unaware of any such reporting obligation and because he also assumed that there would be a police record of the incident. He was subsequently disabused of that assumption in March 2018 when Caroline had reported to him her inquiry of the police and the response that was substantially to the effect that it had no information. Specifically, on 8 March 2018, Caroline contacted the Fairfield police but was informed that if there was no medical treatment undergone at the scene and if the vehicles were not towed, there would be no police report.

  9. There were two further relevant disclosures made by Caroline. The first of these was that on 1 March 2018, Caroline informed the respondent that she had contacted Coles Insurance and had unsuccessfully sought details from an insurer of the incident. It was the respondent who had passed on to her information about Coles Insurance, as a possible source of inquiry, that he had received from Mr Marrouki, on the date of the accident. The respondent was asked to, but could not explain whether or not no contact had been made by Caroline with Coles Insurance prior to March 2018.

  10. The second disclosure occurred in April 2018 when Caroline had informed the respondent that she had requested a Fire and Rescue Report (on 10 April 2018) and had received such report (on 13 April 2018) and further, that such report had identified the registration details of the vehicle thought to be at fault. The respondent confirmed that he had informed Caroline that the Fire and Rescue personnel had turned up at the scene of the accident the first day that he met her (apparently) in November 2017. He said in cross-examination that he understood that she had requested this report in order to try to identify the other driver.

  11. The Fire and Rescue report was sent to the NRMA on 24 April 2018, but on 26 April 2018 the NRMA advised that the relevant CTP insurer (for both vehicles) was the GIO. The same day, the accident was reported to the Fairfield police by or on the respondent’s behalf.

  12. On 27 April 2018, the respondent signed a new claim form, identifying both vehicles. It was sent to GIO on 4 May 2018, with receipt acknowledged by GIO on 8 May 2018.

  13. In his affidavit, the respondent deposed that, since November 2017, when he consulted them for advice, he has been wholly reliant upon his former solicitors, at Lex Fori Lawyers. He was not challenged on that assertion.

  14. On and from 14 May 2018, GIO acknowledged receipt of the claim form, but sought explanation for delay in lodging a claim form.

THE PLAINTIFF’S EXPLANATIONS FOR DELAY TO THE GIO

  1. In the following section, I refer to the evidence to which the Court’s attention was specifically directed by Counsel for the parties on the application.

  2. On 15 May 2018, the respondent swore the first of two statutory declarations. Amongst other things, in that declaration the respondent explained that he began to suffer physical pain around his neck, shoulders and back as he was being taken home after the accident. He also indicated that he had learned that he had a disc/physical injury two months after the accident when an x-ray of his shoulder was carried out. It was the result of this x-ray which prompted him to visit Lex Fori Lawyers in November 2017.

  3. On 29 May 2018, GIO rejected the explanation supplied on the respondent’s behalf and sought further explanation

  4. On 14 June 2018, the respondent swore his second statutory declaration in which the respondent, relevantly, described Caroline’s contacting the ‘Fire and Rescue NSW’ as a “last resort” to find out whether it might have an incident report. He explained that such report had not been requested previously since he had informed his solicitors (i.e. Caroline) that no fire had been reported at the accident scene, and it was assumed that if NSW police did not have any record of the accident on 18 September 2017, then it would be a similar case for Fire and Rescue NSW.

  5. On 9 August 2018, GIO again indicated that the more recent statutory declaration did not address all the matters it considered needed to be explained.

  6. On 7 December 2018, Ms Lazar sent a letter to GIO, under cover of the letterhead of John Fasha Solicitors, in which it was explained, amongst other things, that Mr Marrouki could not provide details of the other driver. Ms Lazar said that the contact with Fire and Rescue in April 2018 was a last resort. She said that “we” did not think it was available (I take that to be a reference to include the respondent). This was because the NSW Police had no record of the incident on its system. When her firm requested information from Fire and Rescue NSW in April 2018, it could only provide that agency with the date of the accident and the location. Had the firm been aware that the report was available prior to April 2018, it would have been requested earlier.

  7. On 14 December 2018, the applicant’s solicitors rejected explanations for late service of the claim form and, accordingly, rejected the claim.

  8. On 15 March 2018, the respondent had prepared a typed statement prepared with the assistance of investigators on behalf of the NRMA. This was served on GIO’s solicitors only in late October 2019. In that statement, the respondent relevantly referred to police (but not the ambulance) arriving at the scene of the accident. He noted in that statement his recollection of both Mr Marrouki and the other driver being breath-tested. He stated that he did not have the details of the other driver or any other witnesses to the accident.

  9. This proceeding commenced on 16 March 2020. A defence was filed on 8 May 2020. Notably, the defendant admitted breach of a duty of care.

  10. After the proceeding was filed, and after the applicant brought this motion, the respondent’s lawyers sought information and assistance from his former solicitors. Ultimately, no assistance of any note could be supplied. It was indicated that Lex Fori Lawyers was no longer in practice; that Ms Lazar, the paralegal, had worked under the solicitor John Fasha, but Mr Fasha had commenced his own firm and Ms Lazar was no longer employed by that firm. The solicitor with whom the respondent’s current solicitor, Mr Bechara, corresponded, whose name is Mary Stephan, currently worked with Mr Fasha, but she only provided some assistance with in relation to the cars. On 3 June 2020, Mr Bechara was told not to communicate with Mr Fasha directly, but only through his solicitor, Mr Peter Moran. Mr Moran also disputed the need for Mr Fasha to provide an affidavit in circumstances where Mr Utiger, the applicant’s solicitor, had annexed a letter from Mr Fasha. In Mr Moran’s email of 3 June 2020, he foreshadowed that privileged information may need to be waived. An impasse was still apparent when Mr Bechara corresponded with Mr Moran on 9 June 2020. Then on 11 June 2020, Mr Moran indicated that Mr Fasha was not prepared to provide an affidavit nor provide any explanation why the claim form was not lodged earlier than it was.

The plaintiff’s evidence

  1. The plaintiff was required to attend to be cross-examined. This was done through an interpreter. In terms of the manner in which he gave evidence, the cross-examination confirmed that the plaintiff has an extremely limited grasp of English, poor memory and (even with the benefit of an interpreter) limited understanding of the nature of what he was asked. I am not confident that, in many respects, he understood the meaning of what was asked of him, even if he did not express any misunderstanding. I have referred to other features of his cross-examination during the narrative account of what occurred.

PARTIES’ CONTENTIONS

Applicant’s submissions

  1. Counsel for the applicant submitted that looking at the question from the perspective of two discrete periods, the respondent’s delay in making a claim was neither fully, nor satisfactorily, explained.

  2. The first period was November 2017 to March 2018. This was the period in which, according to the respondent’s evidence, spanned from the respondent informing Caroline Lazar of two matters – the involvement of Coles Insurance and the attendance of Fire and Rescue – until March 2018, when Ms Lazar informed the respondent that she had learnt from her inquiry of Coles Insurance that no details of the other driver could be released without the other driver’s consent.

  3. It was submitted that if, as the respondent had deposed, he had informed Ms Lazar that Mr Marrouki had told him (at about the date of the accident) that the other driver was insured with Coles Insurance, in November 2017, and if earlier inquiry had been made of the insurer, then the identity of the other driver could have been ascertained and the claim form lodged earlier than it was. This was because if Coles Insurance had paid out Mr Marrouki for damage to his vehicle under the policy, it would only have done so after receiving information from Mr Marrouki about the other driver; which information had subsequently become lost because of the breaking of Mr Marrouki’s phone. Counsel submitted that Mr Marrouki had effectively informed the respondent that he could obtain the information he required about the other driver from Coles Insurance. In this circumstance, it was not correct, or at least it was not fully accurate, for the respondent to simply rely upon Mr Marrouki informing him (in November 2017) that he no longer had the registration details of the other driver since his mobile phone had broken and no longer worked. No explanation was supplied why the respondent did not follow through with Ms Lazar after November 2017, inquiring whether she had pursued Coles Insurance.

  4. The second period was from September 2017 (i.e. from the date the accident occurred) through to 10 April 2018. From the day after the accident, after he had consulted a medical practitioner, the respondent was contemplating bringing a claim. He understood that he would need to identify both drivers involved in the accident. He also knew that Fire and Rescue had attended the scene of the accident. But in this period, no Fire and Rescue Report had been obtained. If he was incapable of requesting a report from Fire and Rescue himself up to the point where he consulted Lex Fori in November 2017, the respondent had told Ms Lazar about its attendance at that point. As the sequence of events showed, once requested, there was a quick response from the Fire and Rescue NSW and the information which was obtained indicated details of the other driver. No explanation was given as to why such report could not have been requested before 10 April 2018. A reasonable person in the respondent’s position would have understood not only that there was a need to identify the other driver, but that a way to do so would have been to contact Fire and Rescue and obtain a report from it. Had the report been requested from Fire and Rescue earlier than it eventually was (on 10 April), again, the information about the other driver could have been ascertained and the claim form lodged earlier than it was.

Respondent’s submissions

  1. Counsel for the respondent submitted that the short answer for the criticism about the failure to make earlier enquiry of Coles Insurance was that had any earlier inquiry been made it would have made no difference, in the sense of being likely to yield information about the other driver any earlier than when that information was received via another route. Counsel for the applicant did not cross-examine the respondent upon the correctness of the evidence in his affidavit (at paragraph 21) in which he deposed to being informed by Ms Lazar, on 1 March 2018, that Coles Insurance would not disclose information about the other driver without the other driver’s consent. There was nothing to suggest that any prior inquiry of Coles Insurance by his lawyers before then (from November 2017) would have yielded any different result.

  2. More broadly, he submitted that the respondent had no awareness of the claims process until he consulted lawyers in November 2017. But despite the lawyer’s best endeavours, the details of the other driver’s vehicle were not ascertainable until April 2018. The respondent’s personal circumstances were such that he was entirely reliant upon his lawyers: he was a recent Syrian immigrant who spoke little English and had minimal education. He was a labourer working on construction sites. He had never previously made a claim. The hypothetical reasonable person under s 66 of the MAC Act is taken to have those attributes and have experienced these circumstances.

  3. The initial period of delay, between the date of the accident and the date of his consulting Lex Fori, being approximately 2 months, was explicable to his obtaining an x-ray depicting a problem with a disc. There was no suggestion that the respondent unreasonably delayed in consulting his (then) solicitors. When he did this, in November 2017, with the assistance of Ms Lazar, the respondent attempted to find out the identity of the other driver, but did so unsuccessfully (until April 2018). The respondent could not be blamed for this, however. He had informed Ms Lazar that police and Fire and Rescue personnel had attended the scene of the accident. According to his later statutory declaration (at paragraph 8), he told Ms Lazar that no fire was reported. Although it is not entirely clear, it appeared that the respondent was suggesting that Ms Lazar had assumed that if the police did not have any record of the accident, the position would be the same with Fire and Rescue. There was no cross-examination of the respondent on this part of his statutory declaration. His evidence in this respect was corroborated in Ms Lazar’s letter to GIO on 7 December 2018.

  1. Ms Lazar did, however, make inquiries of the police and Mr Marrouki, but they did not uncover the identity of the other driver. The respondent had said in an earlier statement that he was not spoken to by the police and there were no other witnesses. As at 15 March 2018, he had not any contact with the other driver.

  2. In summary, there was no aspect of the respondent’s conduct which was unexplained. He contacted lawyers within 2 months of the accident, and given his difficulties with English, his inexperience with making claims of this kind, and his ignorance of his rights, he was entitled to rely upon his solicitor to make all due inquiries on his part. If there was some inexplicable delay by his solicitor in following up Fire and Rescue, then it is important to recognise that it is the respondent’s conduct that is in issue – not his former solicitor’s conduct. Given his predicament and position, it could not reasonably be expected that the respondent would, in effect, chase up or inquire of his now former solicitors how they were going with their inquiries.

  3. Further, the period of delay – approximately 7 weeks – was relatively small. From the time that the Fire and Rescue report was obtained on 13 April, the respondent acted with reasonable alacrity and there was no suggestion otherwise by the applicant.

  4. Further, to the extent that some issue was taken about any omission on the part of the respondent to obtain further information or evidence from his former solicitors, then the correspondence between the respondent’s current and former solicitors since this motion was filed shows that genuine attempts were made to procure an affidavit from his former solicitor, Mr Fasha.

Applicant’s submissions in reply

  1. Counsel for the applicant submitted, in reply, that the conduct of the claimant does not simply focus on conduct by the claimant, but may include others (such as lawyers): Walker v Howard (2009) 78 NSWLR 161 at [55]. To the extent that it appeared that the former solicitor was reluctant to give evidence, and to the extent that there were inadequacies in the explanation because of it, the respondent could have subpoenaed the former solicitor.

  2. Suggestion was made that the respondent should have followed up with Ms Lazar as to the progress of her inquiries of Mr Marrouki and Fire and Rescue, having regard to the information he had supplied to her in November 2017.

CONSIDERATION

  1. There was no dispute that the combined effect of ss 72 and 73 of the MAC Act was that a claim must generally be brought within 6 months of the accident but that, if a claim was made beyond that time interval, a full and satisfactory explanation for delay in making the claim must be provided. The claimant carries the onus of persuading the Court that the explanation is full and satisfactory: s 73(7).

  2. The expression ‘full and satisfactory explanation’ is defined in s 66(2) of the MAC Act as follows:

“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.”

  1. An explanation will be full and satisfactory if a reasonable person in the claimant’s position would have experienced the delay and his or her delay would have been justified in the circumstances: Brierley v Ellis [2014] NSWCA 230 at [7].

  2. The focus of the ‘full’ explanation is the actual period of delay. In this case, that is 18 or 19 March 2018 to 5 May 2018. Moreover, s 73(4) contemplates that the ‘explanation’, although it is to be supplied in the first instance at the time the claim is made, is not limited to that date: Karambelas v Zaknic (No.2) [2014] NSWCA 433 at [17].

  3. The notion of ‘claimant’, where it appears in the first sentence in s 66(2) can embrace not only the actions, knowledge and belief of the claimant, but also the conduct of other persons, such as solicitors, if their conduct is relevant to explaining the delay: Walker v Howard (2009) 78 NSWLR 161 per Allsop P (as his Honour then was, Spigelman CJ, Campbell JA, Macfarlan JA and Young JA agreeing) at [53], [106] & [133].

  4. The concept of ‘satisfactory’ explanation requires the making of an evaluative assessment as to whether, by reference to an objective standard and given the claimant’s position, the delay which occurred was reasonably justifiable: Karambelas at [17]

  5. In assessing the reasonableness of delay, it is necessary to recognise that there is a spectrum of ‘reasonableness’ – it is unnecessary that all reasonable persons would have experienced the delay: Hunter v Roberts [2019] NSWCA 116 per Meagher JA (Brereton JA and Simpson AJA agreeing) at [18] (see also Brereton JA at [32]). As Allsop P said, earlier in Walker v Howard at [108], the test is not “perfection or the most rapid despatch”.

  6. Where reference is made to the claimant’s position in the second sentence of s 66(2), those, like solicitors, who act in the interests of the claimant may form part of the claimant’s position, when assessing the question whether a reasonable person would have experienced that delay: Walker v Howard, at [97]-[99] & [107].

FINDINGS

  1. It is a cardinal requirement in assessing the adequacy of the claimant’s explanation for delay to identify the respondent’s knowledge and circumstances from the date of the accident until the date when the explanation was first provided.

‘Full account’?

  1. That knowledge and those circumstances of the claimant, personally, relevantly included that:

  1. he had difficulties in speaking and writing English and had limited education;

  2. on the day after the accident, the respondent believed that he might be able to bring a claim for compensation because he thought he had sustained physical injury;

  3. it was not until November 2017, after he had an x-ray of his shoulder, revealing a problem with a disc, that he was more serious about bringing such a claim;

  4. the respondent did not, by himself, have any or any real understanding of the process for making a claim of the present kind, including, but not limited to, time limits for bringing such a claim, at least until November 2017, when the 6 month period was brought to his attention by Ms Lazar, who took him through the personal injury claim form which was lodged with the Nominal Defendant;

  5. in November 2017 or January 2018, the respondent had provided instructions to Ms Lazar that:

  1. he did not know the identity of the driver of the other vehicle;

  2. police had attended the scene of the accident, but they had not spoken with him;

  3. Fire and Rescue NSW also attended, but he doubted that they would have reported anything as there was no fire;

  4. the driver of the vehicle in which he was a front seat passenger was Mr Marven Marrouki; and

  5. Mr Marrouki had provided him with the name of his insurer, and possibly that of the other driver, Coles Insurance,

  1. from November 2017, he relied upon Lex Fori Lawyers generally, and Ms Lazar in particular, to advise or inform him of such steps as he would need to take to have a personal injury claim form lodged against the appropriate defendant within the limitation period lest he lose his right to claim for damages against that defendant;

  2. by 3 January 2018, Ms Lazar informed the respondent that such inquiries as she (or the solicitor) had made on his behalf had not been successful in identifying the ‘other’ driver. That being so, it was appropriate for the respondent to lodge a claim against the Nominal Defendant, but further inquiries would continue to be made. The respondent accepted that advice and lodged his claim with the Nominal Defendant and Ms Lazar continued to make inquiries trying to ascertain the identity of the other driver;

  3. the respondent was not aware until 1 March 2018 that an inquiry of Coles Insurance had only indicated that the insurer to Mr Marrouki would not provide information needed to identify the other driver;

  4. the respondent was not aware until 13 April 2018 that an inquiry had been made of Fire and Rescue and that this report had yielded information about the other driver;

  5. from November 2017, he did not ‘follow up’ or inquire of Ms Lazar what information she was able to obtain as a result of her pursuing lines of enquiry with Coles Insurance (up to 1 March 2018) or Fire and Rescue (up to 13 April 2018); and

  6. from the date of the accident up to 13 April 2018, the respondent did not know the identity of the other driver.

  1. I further infer that until 13 April 2018, the respondent did not believe that a claim could be brought against the applicant. Thereafter, in the space of just over 2 weeks, he took the necessary steps, including reporting to the police, to bring a claim against the applicant.

  2. On the basis of these findings, in my opinion, the explanation that was substantially given to the applicant’s insurer for not bringing the claim against the applicant was that it was only after the limitation period had expired on 18 March 2018 that the respondent became aware of the identity of the other driver, and that the other driver was the appropriate defendant to bring a claim against. It was the respondent’s belief, at least until no earlier than 13 April 2018, that although steps were continuing to be made on his behalf to ascertain the other driver, as at 18 March 2018, those attempts had been unsuccessful and he continued to believe that he would have to pursue his claim against the Nominal Defendant lodged in January. He also believed that he had provided to his solicitor, upon whom he relied to do all things reasonably necessary to protect his rights to bring a claim for compensation for injuries he said he suffered from the accident, all the information which he considered relevant to assist his solicitor to make and exhaust inquiries into ascertaining the identity of the other driver.

  3. By her letter dated 7 December 2018, Ms Lazar indicated that she substantially shared the respondent’s beliefs. She believed that it was not possible to ascertain the identity of the driver of the other car until April 2018, when she made essentially a last ditch attempt, or inquiry directly with the Fire and Rescue. She believed that it was unlikely that the Fire and Rescue personnel would have information about the other driver that the police did not have.

  4. When she learned that Fire and Rescue did in fact have information about the other driver, that took her by surprise, but she promptly took steps, including a report to police, to make the claim against the defendant on the respondent’s behalf.

  5. In my opinion, although the explanation from Ms Lazar was not contained in an affidavit, the explanation – which was consistent with the plaintiff’s version of what she had informed him about the progress of her inquiries – when considered alongside other matters identified in the plaintiff’s evidence, suffices to establish that ‘full’ account was given to explain the delay.

  6. I am mindful that no account was provided by the solicitor, Mr Fasha, but there was no indication by the respondent as to what his role was. The matter was not explored with the respondent in the latter’s cross-examination. Further, no adverse inference should be drawn on account of Mr Fasha not giving evidence given his unwillingness to provide an affidavit. I reject the submission of Counsel for the applicant to the effect that it might reasonably have been expected that the respondent would subpoena him to give evidence in the face of his unwillingness to provide an affidavit and general indications (from Mr Fasha’a lawyer) about his general unwillingness to co-operate.

  7. I do not regard this as a case where the respondent could be said to have ‘picked and chosen’ information given relevant to delay in the circumstances I have referred to: Mancini v Thompson [2002] NSWCA 38 at [46].

‘Satisfactory explanation’?

  1. The authorities I have referred to indicate that the relevant question is whether it was justifiable for some reasonable person in the respondent’s position (having regard to his knowledge and circumstances) not to have brought the claim against the applicant sooner than he did. I have also noted that consideration needs to be given to the involvement and especially contribution to the respondent’s decision-making, made by Ms Lazar. To restate the essential question, was the approximate period of 7 weeks’ delay justifiable in the light of his knowledge and circumstances?

  2. As to the point raised by the applicant about the failure to follow through with Mr Marrouki’s insurer, Coles Insurance, I do not consider that the omission to explain why that did not occur sooner than it did was material. I accept that there is no evidence to accept that the insurer’s position would have been any different had it been ascertained earlier, which is the inference that the applicant would have the Court draw.

  3. I now turn to the other point raised by the applicant, concerning the timing of the inquiry with Fire and Rescue. If I was considering the response of a reasonable person solely with reference to the respondent’s (subjective) attributes, I would have had little doubt in accepting that a reasonable person in his position would, having had imparted the instructions that he did to Ms Lazar in November 2017, abided by information and advice about the results of inquiries undertaken by his firm of solicitors disclosed to him when those results became apparent. I do not accept the applicant’s submission that a reasonable person, with this respondent’s knowledge, and impediments in communication, would have himself understood that the way to obtain information about the other driver was to seek a report from Fire and Rescue. That contention pays no regard, whatsoever, to the respondent’s unchallenged evidence that he was inexperienced, ignorant and not in a position himself to make inquiry. I do not impute to a reasonable person in this respondent’s position an awareness of the possibility that the Fire and Rescue personnel would have acquired information which the police had not inquired or, in the absence of a fire, such that the Fire and Rescue personnel would record the details of all the drivers. Although the respondent said that the Fire and Rescue personnel had arrived, there is no indication in any of the evidence that there was any need for ‘rescue’ of any of the participants either. There being no ‘fire’ nor any demonstrable need for ‘rescue’, a reasonable person, being one with this claimant’s subjective lack of experience of motor accidents and reporting obligations, would not readily consider that the Fire and Rescue personnel might have relevant information concerning the identity of the other driver thought to be at fault.

  4. I also reject the proposition that a reasonable person in this respondent’s position would have taken it upon himself to follow up his solicitors as to what s/he or they were doing on his behalf.

  5. At least, in applying the ‘spectrum of reasonableness’ test endorsed by the Court of Appeal in Hunter, I find that there is a hypothetical person within that spectrum who, on account of the absence of information that might have been revealed by the Fire and Rescue personnel, would have experienced the same delay.

  6. I am troubled, however, by the explanation provided for why no inquiry had been made earlier of the Fire and Rescue than it was by Ms Lazar, in April 2018. The explanation, as it emerged in the letter written on 7 December 2018, appeared to comprise two parts: first, a belief in her, based upon what the respondent had told her, that there was no fire meant that it was unlikely that there would be any report taken by the Fire and Rescue personnel (notwithstanding that the personnel attended the scene); and, secondly, an assumption the Fire and Rescue personnel would not obtain any greater information than the police would have. I consider, with respect, that this explanation is problematic. I do not readily infer that ‘Fire and Rescue’ personnel may only arrive at the scene of accident when there is fire or whether, as a matter of fact, someone needs rescuing. Secondly, it is not an obviously reasonable assumption that police would have greater or lesser information than Fire and Rescue personnel who attended the scene. Both agencies were potential leads for further inquiry. Further, it is not explained why the firm chose to make the ‘last resort’ inquiry of Fire and Rescue only on 10 April 2018, by which date the six-month limitation period to bring the claim against the hitherto unidentified driver had already expired. There is, to my mind, at least a doubt about the sufficiency of inquiry undertaken by the claimant’s then solicitors prior to the expiry of the limitation period.

  7. In so saying, I am acutely conscious of not having received an account from any of the personnel in Lex Fori Lawyers, nor, for that matter, expert opinion suggesting that at least Ms Lazar’s conduct was unreasonable. For the purposes of determining this application, it is unnecessary to be conclusive about the adequacy of the claimant’s earlier representation. The blameworthiness or fault of a solicitor is not the issue to be determined: Smith v Grant [2006] NSWCA 244 at [33]-[36] & [74].

  8. This is not a case, like Walker v Howard, where the claimant is completely incapacitated and reliant upon relatives and possibly solicitors, to advance his interests and, in that sense, has no agency whatsoever. In Walker, aside from taking into account the circumstance that he was brain-damaged, the Court could only assess what amounted to the ‘claimant’s position’, for the purposes of the second sentence in s 66(2), essentially by reference to the conduct of other people: the claimant’s relatives and a solicitor who provided assistance to the injured claimant.

  9. Here, the respondent’s age, limited ability to speak, write and understand English, his demonstrable lack of experience in making claims of this kind, and the circumstance that there was nobody else who he could turn to (such as family or other advisers) suggested, as I have indicated, that he did not have the wherewithal to make the inquiries himself. But unlike the claimant in Walker, who had no capacity at all to take any steps to protect his interests, the respondent had sufficient self-knowledge to consult a lawyer to help him. He was, in reality, utterly dependent upon the solicitors whom he consulted in November 2017 to assist him to bring his claim. That dependence, which I find was known by the firm at all relevant times, featured reliance by the respondent upon the firm to make all reasonable and necessary inquiries to exhaust efforts to see to it that a claim was brought against the appropriate defendant in a timely fashion so that it could be brought within the limitation period. A facet of the inquiry of reasonableness, in this respect, is whether the hypothetical reasonable claimant will follow and implement professional advice that is prudently obtained by this claimant. Absent unusual circumstances, most clients accept and implement advice and information that they receive from lawyers they retain; without second-guessing it.

  10. In my view, the construct of the ‘position of this claimant’, for the purposes of the second sentence in s 66(2) embraces the content of legal services (including advice and information) and further inquiry from a solicitor that the claimant actually received; rather than the advice or information and inquiries that perhaps he should have received – if there be a difference. Just as a characteristic such as a claimant’s limited education, or essential inability to speak and understand English, is to be ascribed to the hypothetical reasonable claimant, I do not see why the circumstance that the particular claimant has received possibly insufficient service from a professional, is to be substituted for by consideration of what a claimant, if fully or properly informed following a professional service, in the evaluative assessment of what the hypothetical reasonable claimant would have done in the claimant’s position. I consider that the purpose of the second sentence in s 66(2) is, relevantly, to consider the construct of the claimant’s position as embracing evaluation of how this claimant was actually informed and advised by a solicitors firm, and not how he arguably should have been. As I have indicated, what and how this respondent was informed by his solicitors has been fully explained.

  1. Further, the extent to which this respondent received and acted upon professional advice and information is only part of the equation in identifying how a reasonable claimant would have acted in this claimant’s position (Walker v Howard, per Campbell JA at [127]). Given, as I have found, that the respondent’s reliance upon the firm advising him was entirely reasonable in the light of other circumstances affecting his particular position, I am satisfied that a hypothetical reasonable person in this respondent’s position would have been justified in acting as he did when, upon learning of the details of the other driver, he sought to, and with reasonable despatch actually did, bring the claim against the applicant.

  2. In the last respect, I accept the submission that the delay here was relatively short. There was no dilatoriness in the conduct of the former solicitors once apprised of the identity of the ‘other driver’.

  3. I am satisfied that a full and satisfactory explanation has been supplied by the respondent for its delay.

  4. It follows therefore that the Notice of Motion should be dismissed. Ordinarily, that would mean that the applicant should pay the respondent’s costs of the notice of motion, but Counsel for the respondent has sought opportunity to be heard on that matter. He shall have that opportunity.

POSTSCRIPT

  1. Following the Court’s delivery of these reasons, the respondent’s Counsel made an application for a special costs order that the respondent’s costs of the application be paid on an indemnity basis. This was based upon the contention that it was unreasonable for the applicant to reject the fullness or satisfactoriness of the explanation for delay by at least 7 December 2018. Further, the respondent notified the applicant that if he did not succeed in the application this special costs order would be sought. I expressed my view that the applicant’s refusal to accept the explanation was not so unreasonable as to warrant this special order. Accordingly, the order for costs of the Motion – reflecting the usual rule – was that the applicant pay the respondent’s costs of the Motion.

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Decision last updated: 22 June 2020

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Cases Cited

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Statutory Material Cited

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Walker v Howard [2009] NSWCA 408
Walker v Howard [2009] NSWCA 408
Brierley v Ellis [2014] NSWCA 230