Le v Motor Accidents Insurance Board

[1989] TASSC 107

Serial No. B29/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Le v Motor Accidents Insurance Board [1989] TASSC 107; B29/1989

PARTIES:  LE
  v
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO:  1329/1987
DELIVERED ON:  27 July 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B29/1989
Number of paragraphs:  23

Serial No B29/1989
File No 1392/1987

LE v MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  CRAWFORD J

27 July 1989

1. There are two applications for extensions of time. One has been made pursuant to s5 of the Limitation Act 1974 which provides for a three year time limit in the case of an action for damages for personal injuries based on negligence. By subs(3) it empowers a judge to extend the limitation period for a further period, provided that the period cannot be extended so as to permit the action to be brought outside the period of six years from the date on which the cause of action accrued. The other application has been made pursuant to s16 of the Motor Accidents (Liabilities & Compensation) Act 1973. It provides that where the identity of a motor vehicle involved in an accident cannot be established, the like proceedings may be taken against the respondent Board as could be taken against the person using the vehicle. Subsection (2) provides that no such action shall lie against the Board unless notice of intention to make the claim, together with a short statement of the grounds thereof, is given to the Board within three months following the occurrence of the accident as a consequence of which liability is alleged to have arisen, or within such further time as the court may, on application made not later than nine months after the occurrence of the accident, allow. Notwithstanding this provision subs(2A) permits the making of the application outside the nine month period "if the court is satisfied that the granting of the application is just and reasonable in the circumstances".

1. The applicant is Vietnamese with a poor understanding of the English language. He left Vietnam in 1980 and arrived in Hobart in about May 1981. He stayed with other Vietnamese people. On the night of 26 October 1981, he was a passenger in a motor vehicle driven by Mr Hoang Phu Vo, a fellow Vietnamese, on Sandy Bay Road at Hobart when it was involved in a collision with another vehicle driven by a Mr Reeve in the opposite direction. Immediately prior to the collision an unidentified Mazda motor vehicle, travelling in the same direction as Mr Reeve and alongside his vehicle, had collided with it. As a result Mr Reeve's vehicle veered onto the incorrect side of the roadway and collided with the vehicle in which the applicant was travelling. He suffered injuries as did a number of other occupants in the same vehicle. His injuries included a blow to his head with unconsciousness, lacerations to the side of his head, lacerations to his chin, loss of twelve teeth in his lower jaw, multiple bruises and some injury to his neck and back. He maintains that he has some incapacity for work because of continuing disabilities and that he still receives medical treatment and takes pain killing tablets as a result of his injuries. He was admitted to the Royal Hobart Hospital from 26 to 30 October 1981 and subsequently attended the Outpatients Clinic on five occasions until 24 February 1982.

1. After his discharge from hospital he went to the Australian Legal Aid Office in Hobart. He went there with three others. They were all Vietnamese. The lawyer did not talk to him personally. He could speak little English at the time. He was assisted with the filling in of a form of Application for Benefits which was submitted to the Motor Accidents Insurance Board. It was dated 19 January 1982 which was probably the date on which he went to the Australian Legal Aid Office. He did not understand the form. Someone read it out in English but he did not understand it. He thought it was to assist him in obtaining money. He did not know to whom the form was to be sent. He does not recall what, if any, advice he received. He did not have any knowledge of rights to damages at common law, nor of any limitation period relating to such right. He only visited the Australian Legal Aid Office once.

1. In about April 1982 he left Tasmania and moved to Sydney. He had periods of unemployment there. He heard nothing further from the Australian Legal Aid Office. He remained ignorant of his right to damages. However, he said that some two or three years after the accident a friend advised him to make a claim. He was then in Sydney. He was also told by Mr Vo, the driver of the vehicle in which he had been travelling, to claim for damages. That was at about the end of 1984. He had difficulty communicating further with Mr Vo for certain information, because he did not have Mr Vo's address. Eventually he obtained what he needed and went to a Sydney lawyer, Mr Percival, on about 13 May 1985. Mr Percival worked for a Sydney firm of solicitors, which I will refer to as Brydens. When he was first consulted a period of almost three years seven months had elapsed since the accident.

1. Whenever the applicant saw his Sydney solicitors an interpreter was needed. This caused some delays. I am satisfied that he left the matter to his solicitors, and that he agreed with whatever suggestions for the future conduct of his claim were made. I am also satisfied that usually his solicitors told him what they were proposing to do on his behalf and they generally obtained confirmation from him that they should proceed as advised by them.

1. On 27 April 1982, the Australian Legal Aid Office wrote to the Motor Accidents Insurance Board lodging applications for benefits and also some accounts for, it would appear, nine occupants in the vehicle in which the applicant was travelling. He was one of them. The letter indicated that there was a possibility of further accounts and that he had had a partial denture fitted as a result of the accident and had suffered headaches and difficulty with hearing. The letter indicated that some of the nine persons would be making a third party claim. On 12 October 1984, Hobart solicitors, Murdoch Clarke Cosgrove & Drake, commenced an action claiming damages against Mr Reeve and the Motor Accidents Insurance Board. The action was on behalf of five members of the Vo family, including Mr Vo. The Board's solicitors, Gunson Pickard and Hann, accepted service of the writ on behalf of both defendants on 22 October 1984 and by letter dated 23 October 1985 advised the solicitors for the plaintiffs in that action that it was not proposed to deliver a defence denying liability. Judgment for damages to be assessed was entered for the five plaintiffs on 15 July 1988. It was made clear to me that the question of liability will not be a problem for the applicant and that the only claim of prejudice, occasioned by the delay, is made in relation to the issues of injuries and damage suffered by the applicant.

1. On 13 May 1985, Mr Percival, having been instructed by the applicant, telephoned a Hobart solicitor. He was informed of the provisions of the Limitation Act 1974 and it was indicated that damages awarded in Tasmania were not as substantial as in New South Wales. He was made aware that the first period of three years had expired but leave could be sought for an extension of time for up to a further three year period. It was explained to him that to obtain an extension of time, the applicant would have to show a prima facie case, explain the delay in commencing a claim and show that no prejudice had been suffered by the Board. It was indicated that an application would probably be successful.

1. On 19 June 1985, Mr Della Marta, a Sydney solicitor at Brydens, took over the handling of the applicant's file from Mr Percival. With the assistance of an interpreter he took a statement from the applicant that day. He requested further information from the applicant and received it on 28 June 1985, and on that day he spoke by telephone to Mr Proctor of Murdoch Clarke Cosgrove & Drake in Hobart, who also informed him of the time limits which applied in Tasmania to a personal injuries damages claim. He said that an application for an extension of time had a reasonable chance of success. By 17 July 1985 Mr Della Marta had received from Murdoch Clarke Cosgrove & Drake a copy of the writ they had issued on behalf of some of the occupants of the vehicle and of statements made to the police in connection with the accident. At that time Mr Della Marta made an assessment that if the claim for damages could be brought in New South Wales, the damages would be likely to be more substantial than those which might be obtainable in Tasmania. He saw the applicant again in August and October 1985. At that time he drafted a summons seeking the leave of the Supreme Court of New South Wales to file a statement of claim in that court and he wrote to the applicant asking him to make an appointment for the purpose of obtaining further documentation in support of such an application. What Mr Della Marta had in mind was the decision in Challenor v Douglas [1983] 2 NSWLR 405 in which it was held that proceedings could be taken in New South Wales if they were founded on, or were for the recovery of, damage suffered wholly or partly in New South Wales caused by a tortious act or omission wherever occurring, the expression "damage suffered" including consequential damage such as medical expenses incurred in New South Wales.

1. Further instructions were obtained from the applicant on 5 December 1985. Mr Della Marta has no record of any conversation with the applicant concerning a decision not to commence an application in Tasmania for an extension of time but instead to institute proceedings in New South Wales. However he believes that at the commencement of his conference with the applicant on 5 December 1985, he did outline to him words to the effect that he, Mr Della Marta, would like to explore the possibility of commencing proceedings in New South Wales, that he had prepared an affidavit for the applicant to swear for that purpose and that he also wanted advice from counsel concerning the proposed New South Wales proceedings. Mr Della Marta also believes, although he has no recollection, that he told the applicant that he expected that a claim brought in a New South Wales court would result in greater damages than one brought in Tasmania. On that date the applicant swore the affidavit for Mr Della Marta. In January 1986 Mr Della Marta sought information from two New South Wales doctors who had treated the applicant. He wanted to verify that treatment fees had been incurred by the applicant in New South Wales. A brief was sent to New South Wales counsel on 27 February 1986 seeking advice as to whether he considered that the applicant "would have jurisdiction in the Supreme Court of New South Wales" and if so, counsel was briefed to advise what procedures ought to be adopted in instituting proceedings. On 27 March 1986 counsel, who considered it clear that a claim could be made in New South Wales, advised that further information should be obtained for inclusion in affidavits to support an application in that State. Mr Della Marta wrote to the applicant in April and May requesting him to make an appointment. He apparently did not see him until 13 August 1986 and again on 20 August 1986, delays being caused at least in part by difficulties in obtaining an interpreter. Mr Della Marta was dissatisfied with the evidence he had available for the proposed application to the New South Wales Supreme Court. He wanted evidence corroborating that consequential loss had been suffered in New South Wales, but the treating doctor apparently had not or would not corroborate that he had treated the applicant for injuries resulting from the accident. Mr Della Marta saw the applicant again on 3 September 1986 and obtained further information concerning his disabilities and medical treatment. Mr Della Marta felt that medical reports, corroborating what was necessary to be established, were needed before the application could be commenced. Mr Della Marta ceased to practise at Brydens on 10 September 1986. An employed solicitor, Mr Wilkinson, took over the file. The matter appears to have been delayed further by the fact that doctors were not co–operative in providing medical reports on request. Eventually on 25 March 1987, a summons for leave to issue the statement of claim out of the New South Wales Supreme Court was filed with supporting affidavits. It sought leave to commence proceedings against Mr Reeve and the Motor Accidents Insurance Board. Service was effected on the respondent Board on 1 April 1987. Efforts to serve Mr Reeve were unsuccessful because his whereabouts could not be traced.

1. Gunson Pickard and Hann came to be instructed to act as solicitors for the respondent as a result. Service of the application was the first notice the respondent had been given of the applicant's desire to claim damages. It was almost 5½ years since the accident. As a result of submissions made by the respondent's solicitors, Brydens took advice from a new counsel, which advice was received late in April 1987. It was to the effect that the proposed proceedings in New South Wales against the respondent Board would not be allowed and that proceedings against the respondent could only be commenced in Tasmania. The hearing of the application in New South Wales was then adjourned. At about this time Mr Wilkinson left the firm. Eventually counsel's advice was accepted and a decision was made to commence proceedings in Tasmania and not in New South Wales. The intention to do this was communicated to the respondent's solicitors by letter dated 27 August 1987.

1. On 23 October 1987 a writ was filed in this court by the applicant, suing the respondent and Mr Reeve for damages for negligent driving. This was three days before the expiration of six years from the accident. The application for extensions of time was filed on 27 October 1987. Attempts to serve Mr Reeve have been unsuccessful.

1. Another solicitor, Mr Bryden, took over the handling of the applicant's file in Sydney from September 1987. A draft affidavit in support of the application was submitted to the applicant's Hobart solicitors on 1 December 1987 and they sought further information in January 1988. In June 1988 a draft affidavit of the applicant was sent to his Hobart solicitors and they responded with a request for further evidence. Thereafter, the file in the office of the Sydney solicitors was handled by a clerk who became a qualified solicitor in April 1989. That clerk endeavoured to have Mr Della Marta review the file and provide his comments on matters so that an affidavit could be prepared for him to swear. He required $150 per hour to do that and Brydens referred the matter to the Law Society of New South Wales for a ruling as to the propriety of Mr Della Marta's demand. In August 1988 the Law Society replied supporting Mr Della Marta. Further instructions and funds were then sought from the applicant. In September he responded. Mr Della Marta was then engaged. He responded with his comments on the file and in October 1988 those comments were sent to the applicant's Hobart solicitors. In November 1988 Brydens forwarded a draft affidavit of Mr Della Marta to the applicant's Hobart solicitors. They settled it and in December 1988 it was submitted to Mr Della Marta and he subsequently swore it.

1. The application came on for hearing before me on 22 May 1989 and after adjournments was concluded on 7 July. The supporting affidavits were filed between April and July 1989.

1. It is clear that the delay of about 7½ years from the accident to the commencement of the hearing of the application has caused no prejudice to the respondent so far as the question of liability is concerned. A prima facie case of liability was conceded on behalf of the respondent. The applicant was a passenger. The respondent has admitted liability to at least five other occupants of the vehicle and only a year ago they obtained judgments for damages to be assessed.

1. The respondent's counsel argued that his client was prejudiced by the delay because it would have difficulty obtaining medical verification of whether or not the applicant's present medical complaints were caused by the injuries he received in the accident. The applicant's evidence was that they are headaches, neck pain, back pain and an itchy scar. He still consults a doctor regularly and takes pain killers.

1. The applicant's counsel argued that the onus of proof will be on his client to establish what injuries have been caused by the accident, that the records of the Royal Hobart Hospital will reveal the injuries which were apparent immediately following the accident and that there is no reason why the respondent's medical advisers could not satisfactorily provide an opinion after examination of the applicant.

1. The conclusion I come to is that it is possible that the passage of time may have prejudiced the respondent's interests but it cannot be expressed other than as a possibility. Medical examination and opinion will determine that.

1. The applicant did not consult a solicitor until a little over 3½ years following the accident. No blame can be attached to him for that delay, he being ignorant of his rights for most of that time and ignorant of time limits. His Sydney solicitors then attended to his case in a leisurely fashion, notwithstanding that they were initially aware of the time limit provided by s5 of the Limitation Act 1974. This came about because early on they decided it was in the interests of the applicant to obtain greater damages by proceeding in the Supreme Court of New South Wales. Further running of time was apparently not contemplated as prejudicial to him. His case was delayed for a combination of reasons, not least of which was Brydens lack of haste. About 2 years after being first consulted, and about 5½ years following the accident, Brydens came to realize that proceedings could not be commenced against the respondent in New South Wales. It took six months for the writ and this application to be filed in this court and thereafter about 1 year 6 months to file the first affidavit in support of the application and over 1½ years to have the hearing of the application commence.

1. Both counsel referred to Hall v The Nominal Defendant (1966) 117 CLR 423 and the passage at p435 where Barwick CJ considered the extent to which a litigant may be excused for delay when he has relied on the advice of his solicitor concerning the direction his claim should take. Certainly in this case the applicant has accepted his Sydney solicitors advice and relied on them to conduct his claim.

1. When hearing an application to extend time, the decision depends ultimately on what is just and reasonable. After much hesitation I have resolved that it is just and reasonable that the times be extended in this case. I have no doubt that the application would have succeeded if it had been made and heard in 1985. I consider it unlikely that the delay since then has made it more difficult for the respondent to have the applicant's medical complaints investigated. If the question of liability was an issue and the Board had had no notice of a claim for damages by any of the occupants of the vehicle until April 1987, this is a case where I would have refused the application. But only injuries and damages appear likely to be in issue and it seems quite possible that if I extend the times, the assessment of damages could take place some time in 1990, probably not long after the assessment of the damages of the other injured persons pursuant to the judgment they obtained last year. I am satisfied that a considerable amount of the time which has elapsed since the accident has been caused by the fact that the applicant is Vietnamese with poor understanding of the English language and, for the first 3½ years following the accident, no understanding of his entitlement to damages. On balance I have decided that it is just and reasonable that he should have the opportunity of being put on the same basis as his fellow travellers and have damages assessed for his injuries and loss occasioned by the accident. In saying this I realize that no express admission of liability was made and it is open to the respondent to deny liability. However it appears most unlikely that in fact this will occur taking into account what the respondent allowed to happen in the action brought by the other five claimants.

1. Argument was restricted to the limitation of time contained in s5 of the Limitation Act 1974 and there was no argument concerning the application in so far as it has been made under s16 of the Motor Accidents (Liabilities and Compensation) Act 1973. The relevant provisions of that section are designed to give the Board a chance to make enquiries concerning the identity of the unidentified vehicle and the circumstances of the accident. No claim to prejudice has been raised by the Board concerning the fact that the short time limit prescribed by s16 was passed and I conclude, also taking into account what the respondent allowed to happen in the action by the other five claimants, that no prejudice has resulted.

1. Accordingly, I propose to extend the time in which an action for damages for personal injuries may be commenced by the applicant to 23 October 1987, which was the date upon which the writ was filed.

1. It is clear that by 1 April 1987 the respondent had notice of the intention of the applicant to claim damages in New South Wales. It is also clear that by letter dated 27 August 1987 the applicant's Sydney solicitors wrote to the respondent's solicitors advising that an action claiming damages would be commenced in this State. In these circumstances it seems appropriate that an order should be made extending the time limit of 3 months in s16(2) to the same date, that is to say the date of issue of the writ on 23 October 1987.