Lollback v State of New South Wales

[2014] NSWDC 100

District Court

New South Wales

Medium Neutral Citation:

Lollback v State of New South Wales [2014] NSWDC 100

Hearing dates:

29 and 30 January 2014

Decision date:

31 January 2014

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1) Refuse leave to the plaintiff to commence proceedings under s 109(1) of the Motor Accidents Compensation Act 1999.

(2) Dismiss the plaintiff's amended notice of motion filed 10 July 2013 under s 73(7) of the Motor Accidents Compensation Act 1999, and under Uniform Civil Procedure Rule 13.41(b) by reason of s 109(1) of the Motor Accidents Compensation Act 1999.

(3) Order the plaintiff to pay the defendant's costs of the proceedings, including the costs of the notices of motion.

Catchwords:

MOTOR ACCIDENT COMPENSATION - late claim - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant

Legislation Cited:

Motor Accidents Compensation Act 1999, s 40, s 66, s 73, s 109

Cases Cited:

Buller v Black [2003] NSWCA 45
Diaz & Anor v Truong [2002] NSWCA 265
Ellis v Reko Pty Limited [2009] NSWDC 288
Figliuzzi v Yonan [2005] NSWCA 290
Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167
Russo v Aiello (2003) 215 CLR 643
Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

New South Wales Motor Accidents Practitioners Handbook

Category:

Interlocutory applications

Parties:

Brendan Lollback (plaintiff)
State of New South Wales (defendant)

Representation:

Mr G Hickey (plaintiff)
Mr S Harben (defendant)
Slater & Gordon Lawyers (plaintiff)
Gillis Delaney Lawyers (defendant)

File Number(s):

2012/288977

Publication restriction:

None

Judgment

1. Brendan Lollback was injured on 4 October 2004. By his solicitor he lodged a personal injury claim form on 29 February 2012 and served a statement of claim on 2 October 2012.

1. This application concerns whether Mr Lollback has provided a satisfactory explanation for the delay in the lodgement and service of these documents under ss 73 and 109 respectively of the Motor Accidents Compensation Act 1999.

BACKGROUND

1. On 4 October 2004 Mr Lollback, a police officer on duty, was the passenger in a car driven by Marc Beckinsale. They were following a vehicle driven by one Aaron Robertson, known to be disqualified from driving. Mr Robertson brought his car to a halt, alighted from the vehicle and commenced running through a nearby paddock. In the course of Mr Beckinsale bringing his car to a halt to enable a chase of Mr Robertson, Mr Lollback suffered a serious injury to his ankle.

1. All of the documents created at the time of the injury and in the years following, including documents signed by Mr Lollback and Mr Beckinsale, indicate that the injury to Mr Lollback occurred when Mr Lollback attempted to alight from the vehicle whilst it was still in motion. However, Mr Lollback in 2013 swore an affidavit and gave oral evidence before me to the effect that Mr Beckinsale:

"unexpectantly [sic] drove directly into the kerb ... The front of the patrol car bounced up in the air and the rear of our vehicle slid out sideways. I recall that I braced for the impact by holding the two handles ...

The next thing I remember is waking up on the ground."

1. This account attributed some responsibility for Mr Lollback's injuries to Mr Beckinsale. In evidence Mr Lollback said that he did not blame Mr Beckinsale for his injuries, but he has sued him for damages and the statement of claim alleges that Mr Beckinsale:

"(a) [was] unable to steer or manoeuvre his vehicle so as to avoid collision with the kerb;

(b) drove at a speed which in the circumstances was excessive;

(c) failed to brake so as to avoid collision with the kerb;

(d) failed to keep a proper lookout;

(e) had no regard for the fact that the Plaintiff (in the performance of his duties) had removed his seatbelt to quickly alight from the vehicle;

(f) drove the vehicle into a kerb albeit that he was aware that the Plaintiff was in the process of getting ready to alight from the vehicle."

1. Although Mr Lollback does not say so in his affidavit, the statement of claim at paragraph 6 asserts that the driving of the vehicle into the side kerb "caused the Plaintiff to be propelled into the door activating the door opening device and causing him to be thrown from the vehicle."

1. The current defendant in the proceedings is the State of New South Wales.

1. Mr Lollback was challenged on this version of events given in his affidavit and orally. I was not entirely comfortable with his evidence. His explanation of his signed documents in 2004 and 2006, which attributed the injury to him "getting out" of the vehicle before it had stopped, was that this account was affected by the medication he was taking at the time.

1. In addition, he sought to distance himself from his admitted signature because he did not normally sign the way his signature appeared on the documents, saying that this was "not my signature at the time".

1. I was unpersuaded by this evidence and, if it were necessary to make a finding as to the events leading to the injury, I would accept the contemporaneous records and the documents created nearer to the time of the injury, rather than Mr Lollback's account given in the statement of claim. As I indicated, neither Mr Beckinsale nor Mr Lollback gave evidence that Mr Lollback was thrown from the vehicle.

ISSUES

1. Mr Lollback has filed a motion seeking leave to commence proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999 and seeking an order that he has "provided a reasonable and satisfactory explanation for late lodgement of the claim, pursuant to Section 73 of the Motor Accidents Compensation Act 1999."

1. The defendant has also filed a motion seeking that the proceedings be dismissed for contravention of s 109 and for failure of the plaintiff to provide a full and satisfactory explanation of the delay in making the claim. The defendant accepted that the issue is not really whether a full explanation was provided, but whether it is satisfactory, accepting that all the details of the delay had been set out in Mr Lollback's explanation.

1. Thus before me the issues were:

(1) whether there was a satisfactory explanation by Mr Lollback for the delay in making a claim and in commencing proceedings; and

(2) whether, in any event, leave should not be granted to commence proceedings out of time.

SATISFACTORY EXPLANATION

1. Section 66(2) 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 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. In respect of an earlier version of this provision in Buller v Black [2003] NSWCA 45 Giles JA at [95] notes:

"The requirement must be understood for its function in the wider scheme in the Act. S43 states as its object, that is, the reason for the six month time limit, promotion of the early making of claims to enable the insurer to commence investigation while evidence is available, to identify injuries and facilitate access to injury management and rehabilitation services, and to more accurately predict claim frequency and hence formulate premiums. Late claims will still be recognised provided a full and satisfactory explanation for the delay in making the claim is provided, but only if the claimant's explanation is (relevantly) satisfactory, and satisfactoriness is given a minimum content. A person with knowledge of the six month time limit, in particular, can not tarry."

1. In Figliuzzi v Yonan [2005] NSWCA 290 Santow JA at [29] referred to the recognition by Gleeson CJ in Russo v Aiello (2003) 215 CLR 643 at [7] that a reasonable person could experience a delay where that person suffered a delay in onset of symptoms. Santow JA noted, "In such a case the claimant can be either unaware of her symptoms, or, I would add, unaware of their full extent."

1. Although Santow JA was in dissent, this principle does not appear to have been disputed. This principle is also recognised in s 73(2) of the Act, which provides:

"Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation."

1. However, this principle does not appear to have application in this case. Mr Lollback's injuries were serious from the outset and remained so, a matter to which I will return.

1. In Ellis v Reko Pty Limited [2009] NSWDC 288 at [20] Knox SC DCJ stated:

"The focus of the procedure in determining the concept of a satisfactory explanation is upon justifying it rather than excusing it - per Russo v Aiello [2003] HCA 53 per Gleeson CJ at [7]; (2003) 215 CLR 643; Smith v Grant [2006] NSW CA 244 at [55]. The matter is then determined by looking at whether the conduct is justified by reference to the way in which a reasonable person in the position of the applicant could have been expected to behave."

1. Diaz & Anor v Truong [2002] NSWCA 265 indicates that the court must take into account the subjective circumstances of the claimant for the purpose of deciding whether a reasonable person standing in the position of the claimant would have been justified in experiencing the same delay.

1. In Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 at [59] the Court of Appeal appeared to recognise that the length of the delay was a relevant matter. In the present case the delay is a little over seven years, which is not an insignificant period.

1. The reasonable person test in s 66 requires a court to consider a reasonable person in the position of the claimant (see Walker v Howard at [2009] NSWCA 408; (2009) 78 NSWLR 161 at [108]M). The ambit of this phrase "in the position of the claimant" is open to argument (see Walker at 137 and 152 per Young JA). It seems that a reasonable person must be given Mr Lollback's symptoms, experience of the accident and his knowledge of his rights and entitlements. Whether Mr Lollback's beliefs are also part of the reasonable person in Mr Lollback's position might be doubted, particularly if those beliefs do not reasonably arise from his symptoms.

1. It seems to me that importing all of Mr Lollback's beliefs into the "reasonable person in the position of the claimant" in s 66 may lead to the conclusion that only an irrational failure to give notice and commence proceedings would not be a satisfactory explanation. This is because, generally speaking, people act in a certain way because they are motivated by reasons, real or believed. If the hypothetical reasonable person is regarded as having those same motivations, those same beliefs, it is difficult to find that such a reasonable person would not be "justified in experiencing the same delay". I note that the meaning of "justified" is not further defined in the Act.

1. Nevertheless, the judgment of Tobias JA in Figliuzzi, relevantly agreed to by McColl JA at [133], indicates that the belief of the plaintiff is part of the "position of the claimant in s 66". At [94] Tobias JA stated:

"Accordingly, the critical question concerns the behaviour of a reasonable person in the position of the respondent who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because that accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act. Would that reasonable person in the respondent's position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practice or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?"

1. His Honour continues at [100] - [102]:

"In my opinion, if the second limb of s 40(2) of the MA Act is to achieve its purpose of setting an objective standard of conduct with respect to the expected behaviour of a reasonable person in the position of the respondent who had been injured (no doubt in her view seriously) in a motor vehicle accident and who, as she said, had sustained significant injuries that impacted on all aspects of her life and which did not subside, such a person would have been expected at the very least to have sought legal advice, by some means or other as to whether her belief that she did not have a claim under the MA Act because she was receiving workers compensation payments due to her time off work as a result of those injuries, was indeed correct as a matter of law. It is not suggested that had such a question been asked, it would have been answered otherwise than that, at the very least, she may have such a claim.

In argument before this Court it was suggested that it was perfectly understandable for the reasonable person in the respondent's position, who was a clerk and not a lawyer and notwithstanding that she worked in a legal environment, to have reasonably believed that the fact that she was in receipt of workers compensation payments disentitled her to claim damages in respect of the injuries sustained by her in the motor vehicle accident against the appellant whom she regarded as responsible for the accident and for her injuries: see the primary judge's finding recorded in [46] above.

The difficulty with this approach in my view is that it asks the wrong question. It is not a question of whether the belief held by the respondent was other than bona fide or, for that matter, whether in the particular circumstances it was reasonably held. The correct question is whether, holding that belief, the reasonable person in the position of the respondent would have simply left the matter at that, ignored the possibility that the belief may have been wrong and, notwithstanding knowledge that CTP insurance was available to compensate those who had sustained injuries in motor vehicle accidents due to the negligent conduct of another driver, would have considered it unnecessary to make the very basic enquiry of a qualified person as to whether the belief was justified."

1. The provisions referred to in s 40(2) of the Motor Accidents Act 1988 are, relevantly, identical to s 66(2) of the Motor Accidents Compensation Act 1999.

1. In the present case, Mr Lollback accepted that he had been seriously injured in a motor vehicle accident and he had sustained significant injuries that impacted on all aspects of his life, which did not subside. Like Ms Yonan in Figliuzzi, Mr Lollback asserted that he did not believe that he had a claim under the Motor Compensation Accidents Act 1999 because he "believed that it would be a workers compensation claim only".

1. It follows that such a person as Mr Lollback would have been expected to seek (see [100] in Figliuzzi) or a reasonable person would have sought (see [133] in Figliuzzi) legal advice as to whether that belief of the lack of entitlement was correct. Like the plaintiff in Figliuzzi, Mr Lollback did not seek legal advice, for the period 2004 to 2010 inclusive. It appears to me to follow from Figliuzzi that this failure of Mr Lollback distinguishes him from a reasonable person in his position.

1. Mr Lollback sought to distinguish Figliuzzi on the basis that he was told by his supervisors that this was a workers compensation claim. Mr Lollback gave this evidence orally. It does not appear in his affidavits and is not supported by any of the historical documents.

1. I am disinclined to rely on an eight year old general recollection of conversations given in the witness box, especially without any identification of who, where, when and precisely what was said (see generally Watson v Foxman (1995) 49 NSWLR 315 at 318 and 319).

1. Mr Lollback's affidavit indicates that Mr Lollback believed that the accident "would be a workers compensation claim only" because he believed that it would not be "classified as a car accident", because he believed that it was not "declared a 'critical incident' by the Assistant Commissioner", because "no such crash investigation", so he believed, took place. It may be that this line of reasoning or collection of beliefs were not present in Ms Yonan, but I do not think this is a difference that renders the present matter distinguishable from the decision in Figliuzzi.

1. Mr Lollback also relied on his belief that until 2010 he was well treated, that the benefits he received from his workers compensation were satisfactory and for that reason he had no need to see a lawyer.

1. He also relied in this application on his difficult domestic situation and health challenges. But ultimately, counsel who appeared for Mr Lollback accepted (correctly in my view) that the crucial element in determining whether there was a satisfactory explanation for the delay, in justifying the delay, was Mr Lollback's belief that he had no entitlement to claim.

1. For the reasons I have given, I do not think that is sufficient, bearing in mind the decision in Figliuzzi.

1. I have also been referred to [101] and [149] of the decision in Walker. The authority of those statements cannot be doubted, but no submission was made as to how those comments impacted on the applicability of the decision in Figliuzzi.

1. It may be that on my view of the underlying facts, indicated above, the failure to give notice and commence proceedings in time was reasonable because the claim was reasonably perceived as having poor prospects, there being a difficulty in establishing negligence, but I need not consider this question as it forms no part of the explanation Mr Lollback presents to this court.

1. For these reasons, I am not satisfied that the plaintiff's explanation is satisfactory.

1. The defendant also raised the issue about whether leave should be granted under s 109, even if the explanation is satisfactory. The basis of this submission is that, although a satisfactory explanation is necessary, it is not sufficient. This submission finds some support from the words of the section, "leave of the court must not be granted unless", and the commentary in the New South Wales Motor Accidents Practitioners Handbook at paragraph 45-550, which indicates additionally that, "the claimant must satisfy the court as to the usual discretionary factors associated with a grant of leave such as, for example, prejudice and forensic diligence." It might be thought in this context that "forensic diligence" may well be relevant to satisfactoriness in any event.

1. On the other hand, the wording of s 66(2) is similar to s 109(3), stating in the former provision, "The explanation is not a satisfactory explanation unless", and yet this provision has been authoritatively held to be the operative test of satisfactoriness sufficient, as well as necessary, to establish satisfactoriness (see Walker at [95]).

1. I recognise that the need for "leave" under s 109 might import other relevant matters. On the other hand, if an explanation for delay was full and satisfactory, which also means that a reasonable person was justified in experiencing that delay, I would be cautious in refusing leave because of other matters. This is especially so when no particular prejudice has been alleged and identified, although it must be assumed that some prejudice would result from a delay of more than seven years from the accident until notification of the claim and commencement.

1. However, I need reach no final decision on this matter, as I have not found the explanation to be satisfactory within the meaning given to that phrase in s 66(2) of the Act.

1. Accordingly, the orders of the Court are:

(1) Refuse leave to the plaintiff to commence proceedings under s 109(1) of the Motor Accidents Compensation Act 1999.

(2) Dismiss the plaintiff's amended notice of motion filed 10 July 2013 under s 73(7) of the Motor Accidents Compensation Act 1999, and under Uniform Civil Procedure Rule 13.41(b) by reason of s 109(1) of the Motor Accidents Compensation Act 1999.

(3) Order the plaintiff to pay the defendant's costs of the proceedings, including the costs of the notices of motion.

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Decision last updated: 18 July 2014