Kostopoulos v Sims

[2006] NSWDC 99

CITATION:

Kostopoulos v Sims [2006] NSWDC 99

HEARING DATE(S):

2/11/06

EX TEMPORE JUDGMENT DATE:

11/02/2006

JUDGMENT OF:

Sidis DCJ

CATCHWORDS:

Extension of time to commence proceedings

LEGISLATION CITED:

Motor Accidents Act 1988

PARTIES:

Terry Kostopoulos
Matthew James Sims

FILE NUMBER(S):

Coffs Harbour 27/06

COUNSEL:

Plaintiff M B Inglis

Defendant J Ringrose

SOLICITORS:

Plaintiff Pollock Greening Hampshire

Defendant Carroll & O'Dea

JUDGMENT

1 In this matter the plaintiff, Terry Kostopoulos, seeks an extension of time within which to bring proceedings in respect of a motor vehicle accident that occurred on 8 June 1999. His application is made under s 52(4) of the Motor Accidents Act 1988. It is supported by affidavits of himself and his current solicitor, Mr Brennan. In response, the defendant has filed affidavits of his solicitor, Mr Higgins.

2 As far as the accident itself is concerned, there were materials before me produced by the New South Wales Police Service which indicated that the versions of the accidents provided to police by the plaintiff and by the driver of the vehicle which struck him were substantially different in nature. There is, therefore, evidence that there are substantial issues on liability between the plaintiff and the driver of the vehicle.

3 The evidence of the plaintiff was that he first made contact with his former solicitor, Mr Velcic, one month after the accident. He was imprisoned between October 1999 and January 2001, and he stated that in that period he relied upon his mother and a former girlfriend to make contact with Mr Velcic about the progress of his claim. He was medically examined in January 2001 and he stated in his affidavit that he signed the claim form in May 2001, although on the documents it would appear that this occurred in April 2001.

4 The claim form was forwarded to the insurer, the Transport Accident Commission of Victoria, with a statutory declaration dealing with the delay in submission of the claim for the purposes of s 43A of the Act. The insurer responded in 2001, rejecting the explanation as inadequate and seeking further information. The further information sought has never been provided.

5 The plaintiff’s statutory declaration was scant indeed, and in my view, the insurer was perfectly entitled tFVo reject it. The insurer asked for statutory declarations from the former girlfriend, who apparently had a substantial drug problem, and there may well be a reasonable explanation why a statutory declaration was not forthcoming from her.

6 The insurer also asked for a statutory declaration of Mr Velcic dealing with the actions that he had taken since first instructed by the plaintiff. There is no information before the Court as to why Mr Velcic did not respond to this request.

7 In the absence of any further material, dealing with the period between July 1999 and January 2001, either from the plaintiff, his former girlfriend or Mr Velcic, or indeed for the period between January 2001 and April 2001 when the claim form was actually submitted, I am not satisfied that there was in fact a full and satisfactory explanation as required by s 43A of the Motor Accidents Act. The plaintiff therefore technically is not in a position to seek the leave of the Court for the purposes of s 52(4). However, I will deal with the issues raised on that application, in the event that this matter goes further.

8 Those issues involved the threshold of twenty-five percent of a worst case agreed between the parties to be in the sum of $65,000. There is no doubt that the plaintiff has suffered significant injury and continues to suffer from significant disability as a result of the fracture to his ankle suffered in the motor vehicle accident. He is still a relatively young man at 44 years of age. Thus non-economic loss and the out-of-pocket expenses suggested as required to meet further surgery are likely, in my view, to take him over the threshold.

9 Similarly, I consider that in the circumstances of the plaintiff, uneducated and unskilled, the damage to his leg would be such that he would be significantly disadvantaged in the workplace, and that notwithstanding his criminal record, some buffer would be provided in terms of loss of income-earning capacity.

10 Against this, I am required to consider whether, if his claim succeeds, there would be a deduction on account of contributory negligence by reason of the fact that he was walking on a freeway at 3am. In my view, some deduction for contributory negligence is almost inevitable. However, I do not think that the threshold is determinative of this application. I think it is likely that he would succeed in securing greater than twenty-five percent of a worst case.

11 The quality of the explanation now provided on the leave application was also called into question by the defendant. The plaintiff’s evidence was that at all times he had attempted to make contact with his former solicitor to ascertain the progress of his claim, either through himself or his mother, or as I have noted, his former girlfriend. He stated that he relied upon Mr Velcic to progress his claim on his behalf.

12 I have already noted that there is no evidence before the Court from Mr Velcic. It was argued for the plaintiff that it was apparent from the former solicitor’s file that he had relied on counsel’s advice that an application for leave should be made after the plaintiff’s release from his current period of custody in 2007.

13 Counsel’s advice is in evidence. It points to a number of difficulties facing the plaintiff in the proceedings, including the problem relating to the full and satisfactory explanation required by s 43A of the Act. The opinion does in fact conclude by recommending that further action await his release from custody. However, even if Mr Velcic were entitled to rely on this advice, there is still nothing from him to deal with his failure to respond to the insurer in respect of the further material sought to explain the delay in lodging the claim in the first place.

14 There are some file notes before the Court dealing with the period May 2001 to April 2002, indicating that attempts were made to find the former girlfriend, but there is nothing to indicate whether or not she was located. There is nothing to indicate that any attempt was ever made to prepare the statutory declaration sought in respect of Mr Velcic’s conduct of the claim.

15 In my view, the absence of evidence from Mr Velcic is a significant deficiency in the quality of the explanation provided, such that I do not think that the explanation meets a standard that I could call satisfactory.

16 I do accept that there is a prima facie case made out for a cause of action against the proposed defendant. However, on the issue of prejudice, I note that a period of seven years has elapsed from the date of the accident.

17 The evidence indicates that the driver of the vehicle and one of his passengers has been located, but there is no evidence before the Court as to the extent to which they recollect the events of 8 June 1999. Police records are available. There is no evidence of what the insurer did to investigate the matter when it was put on notice of the claim in 2001. At that stage a period of two years had already elapsed from the date of the accident, and in the absence of a response to the request for further information, in my view, it was reasonable for the insurer to have archived the file.

18 The application for leave was brought in 2006, seven years after the accident, when there are likely to be difficulties by the parties and their witnesses with accurate memories of the events leading to the accident. I debated with the parties the obvious difficulties in instructing experts to provide opinions as to which version of events was more probable, considering that they would be provided with information affected by the lapse of time. In my view this would compound the difficulties facing the parties in securing evidence of an appropriate quality. The result is that I am not satisfied that a fair trial of the issues could be obtained.

19 For these reasons the application is dismissed.

20 The plaintiff is to pay the defendant’s costs of the application.

21 The affidavit material and the exhibits are returned.

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