Mantas v Lebon

[2018] NSWDC 195

District Court

New South Wales

Medium Neutral Citation:	Mantas v Lebon [2018] NSWDC 195
Hearing dates:	17 July 2018
Date of orders:	19 July 2018
Decision date:	19 July 2018
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	[See paragraph 42 for orders]
Catchwords:	LIMITATION OF ACTIONS – application by plaintiff for leave to bring proceedings pursuant to s109(3) of the Motor Accidents Compensation Act 1999 – whether plaintiff’s explanations for delay are full and satisfactory
Legislation Cited:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 s 109, s 110, s 109(3)(a), s 109(3)(b), s 134, s 66(2)
Cases Cited:	Djakovic v Perez [2015] NSWCA 174 following Karambelas v Zaknic (No 2) [2014] NSWCA 433, Holt v Wynter (2000) 49 NSWLR 128 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735,] Walker v Howard [2009] NSWCA 408, at [66].
Category:	Principal judgment
Parties:	Geralda Lima Mantas (Plaintiff) Geoffrey John Lebon (Defendant)
Representation:	Counsel: Mr B Dooley SC with Mr J Jobson (Plaintiff) Mr W Fitzsimmons (Defendant) Solicitors: Andresakis & Associates (Plaintiff) Moray & Agnew Lawyers (Defendant)
File Number(s):	2017/00331424
Publication restriction:	None

SUMMONS

1. On 2 November 2017, the plaintiff, Mrs Geralda Mantas, filed the present summons seeking leave, pursuant to s 109 of the Motor Accidents Compensation Act 1999 [“MAC Act”], to commence proceedings out of time in respect of a motor accident damages claim for personal injury.

2. The claim relates to a motor vehicle accident that occurred on 14 September 2011, where the defendant, Mr Geoffrey Lebon, was the party at admitted fault. The defendant’s compulsory third party insurer, Allianz Australia Insurance Limited, opposes the plaintiff’s application.

Evidence overview

3. The plaintiff relied upon her own affidavit sown on 31 October 2017, and that of her solicitor, Mr Angelo Andresakis, sworn on 6 February 2018. The latter affidavit comprised some 694 pages of extensive annexures comprising documents that have accumulated over time covering the plaintiff’s claim.

4. The evidence relied upon by the defendant comprised an affidavit from Ms Frances Allen, solicitor, sworn on 13 March 2018, which also incorporated voluminous annexed documentation. There was no oral evidence called either in chief or by way of cross-examination.

Issue for determination

5. The issue calling for decision in this application is whether, on the evidence tendered, the plaintiff has provided a full and satisfactory explanation for the delay in commencing proceedings for damages arising from the accident in question: s 109(3)(a) of the MAC Act.

6. The defendant concedes that the total damages otherwise likely to be awardable to the plaintiff if her action were to succeed, would be not less than 25 per cent of the maximum awardable for non-economic loss pursuant to s 134 of the Mac Act: s 109(3)(b) of the Mac Act. The defendant did not raise any arguments as to prejudice due to the effluxion of time since the accident.

Factual circumstances

7. Although the documentation was voluminous, the essential factual circumstances may be outlined as follows.

8. At the time of the accident, the plaintiff, who was self employed in a bridal dressmaking business, was aged 42 years. She is now aged almost 49 years. Although she was self-employed, the evidence reveals that she was relatively unsophisticated in terms of the manner in which she managed her business records. Those circumstances are at the core of this application, as they were the cause of significant delays in progressing her claim for damages.

9. In the subject accident, the defendant’s vehicle struck the plaintiff’s vehicle from behind. As a result she was injured and shocked. She was driven home and she consulted her local family doctor, who has managed her treatment ever since, in addition to referrals for specialist consultations and advice.

10. The plaintiff complied with all relevant accident reporting provisions in order to position her claim for advancement. On 7 November 2012, she consulted her solicitor for advice as to her claiming rights. Her solicitor sought consultations and advice from counsel from an early stage.

11. On 19 April 2012, the defendant’s insurer admitted that the defendant had breached the duty of care that was owed to the plaintiff. From that time, and until 25 August 2016, the claim has been the subject of the alternative dispute resolution procedures of the Claims Resolution Service (CARS).

12. On 3 August 2016, the insurer sought an exemption from that process on the ground that process was unsuitable to the case. The exemption was given on 25 August 2016, so that from that date, the plaintiff’s claim was no longer the subject of the CARS regulatory process.

13. The plaintiff has ongoing problems of the cervical spine with related neurological symptoms. The latest MAS determination of her level of impairment, on 27 September 2017, was 14 per cent. That assessment has been set aside pending a further review. In these reasons, it is not relevant or necessary to review the course of the plaintiff’s treatment and other assessments, other than to observe that she has been under periodic professional review.

14. Appropriate medical evidence and reports were sought and obtained to support her claim. The insurer has also exercised its right to have the plaintiff medically examined and assessed in light of her complaints.

15. An important component of the plaintiff’s claim for damages is her claim for economic loss both past and future. That component of the claim has been the subject of considerable delay in advancing the plaintiff’s claim, as explained in the paragraphs that now follow.

16. On 3 July 2013, after some antecedent time was taken up with assembling relevant documentation, the plaintiff’s solicitor obtained a draft economic loss report from Messrs Furzer Crestani, a firm of forensic accountants. That report was not definitive and further factual investigations and analyses were required in order to formulate the claim. Those matters took a considerable period of time, including because the plaintiff was unsophisticated in a business records sense.

17. On 2 June 2014, the final Furzer Crestani report was obtained and served on the defendant’s insurer. Reference to a relevant portion of the body of that report appearing between pages 189 to 210 of the annexures to the affidavit of Mr Andresakis reveals that the gathering of the documentation, and the assumptions upon which to base the plaintiff’s economic loss claim, was a complex and time consuming process. This caused the plaintiff, her husband, her solicitor and the forensic accountants, some considerable difficulty over the course of time since those accountants were engaged.

18. What then followed was a course of protracted correspondence that passed between the insurer and the solicitor for the plaintiff, in which clarification and factual substantiation was sought for the claim being made for economic loss.

19. On 15 December 2015, the parties arranged for an informal settlement conference, which unfortunately failed to resolve the matter.

20. On 17 December 2015, the defendant’s insurer served on the solicitor for the plaintiff a copy of a report from Vincent’s Chartered Accountants, a firm of forensic accountants, who were engaged by the defendant.

21. On 12 February 2016, the solicitor for the plaintiff served a further report from Furzer Crestani on the insurer. On 16 February 2016, the insurer’s solicitor sought a series of authorities from the plaintiff, and the insurer also sought further information form the plaintiff’s accountants. Between that time, and August 2016, the plaintiff attended further medical examinations and the plaintiff’s solicitor obtained supplementary reports from Furzer Crestani.

22. On 25 August 2016, when the solicitor for the insurer served a certificate of exemption from the CARS process on the solicitor for the plaintiff, the statutory scheme of the CARS process ceased to govern the progress of the plaintiff’s claim as had been the case beforehand. By that time, and by reason of the cessation of the CARS process, the plaintiff was out of time for serving a statement of claim without the leave of the court, as more than 3 years had passed since the time of the subject accident.

23. Until that time, there had been no complaint made by the insurer of a delay in bringing the plaintiff’s claim. In the period between 1 September 2016 and 9 March 2017, the insurer’s solicitor continued to write to the solicitor for the plaintiff seeking economic loss material from the plaintiff, including for signature on authorities authorising disclosure of economic loss information.

24. On 10 March 2017, pursuant to s 110 of the MAC Act, the insurer’s solicitor served a notice on the solicitor for the plaintiff requiring that proceedings be commenced on behalf of the plaintiff.

25. Those proceedings were commenced by filing a statement of claim on 27 March 2017, and service of same on the defendant on 7 April 2017.

26. In the course of those events, on 25 August 2017, another Judge of this Court heard summons proceedings brought by the plaintiff pursuant to s 109 of the MAC Act and dismissed those proceedings. No relevant estoppel arises concerning the present summons.

27. Between 11 April 2017 and 10 July 2017, the defendant’s solicitor sought further economic loss documentation from the solicitor for the plaintiff, a further Medical Assessment Service application was made and the plaintiff was given confirmation from the State Insurance Regulatory authority that her claim was to be referred for further medical assessment.

28. That medical assessment was completed on 26 September 2017, with a certificate of 14 per cent impairment.

29. On 3 November 2017, the day following the filing of the plaintiff’s summons under present consideration, the insurer lodged an application for a review of the plaintiff by the Medical Assessment Service.

Consideration

30. Until 25 August 2016, when the insurer secured the issue of a certificate of exemption from the CARS process, there were no procedural defaults on the part of the plaintiff, albeit that the documentation of her economic loss claim was progressing slowly. In that period, the plaintiff believed that she had entrusted the appropriate professional handling and progression of her claim to her solicitor. She believed that in those circumstances, her solicitor was seeking to resolve her claim through the CARS process, which was a less formal procedure than an adjudication by a court.

31. I consider that a reasonable person in the position of the plaintiff would have been justified in experiencing the above delay encountered in progressing her claim in those circumstances: s 66(2) of the MAC Act.

32. I take that view because this was no run of the mill case. The plaintiff’s economic loss claim was complicated by what she conceded was sloppy record keeping. Much time and effort was therefore taken up with seeking to document her claim and to identify some reasonable assumptions upon which to progress that aspect of her claim. She did not have the knowledge, skills or experience to do so herself. She left that preparation and handling of the progress of her claim to her accountants, her solicitor, her counsel and her forensic accountants, on whom she respectively relied for that purpose.

33. In my evaluation of the sequence of factual events as described above, on an objective standard, the documentation delay which was experienced whilst the claim was being managed by the plaintiff’s advisors within the CARS process, where it was not a simple or straight forward claim, and where it was also perplexing to the defendant’s insurer, and it’s appointed forensic accountants, was in my assessment, both full and satisfactory: Karambelas v Zaknic (No 2) [2014] NSWCA 433, at [16] - [17]. That delay, which followed a statutory process, should not penalise the plaintiff in this context, where I find that a reasonable person in the position of the plaintiff would have acted in conformity with what had in fact transpired in the described sequence of factual events that have been outlined: Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, at [60], [64] – [65]; s 66(2) of the MAC Act.

34. In arriving at that view of what a reasonable person in the plaintiff’s position would have done in the circumstances, I have also taken into account the fact that the exercise of gathering the appropriate claim documentation, which took time both for gathering information, and to satisfy the insurer’s recurrent requests, was a function of the intrinsic deficiency or sloppiness as the plaintiff described it, regarding her business records: Walker v Howard [2009] NSWCA 408, at [66].

35. The fullness of the plaintiff’s explanation is confirmed by her extensive explanation of her conduct, actions, knowledge and belief, as emerges from her own affidavit, as supported by her solicitor’s affidavit. In my view, those explanations satisfactorily meet the recurrent statements in the defendant’s submissions as to the occurrence of delays whilst the plaintiff’s claim was being documented. That was a process that was beyond her own abilities, such that a reasonable person in her position, who left the conduct of her case to the professionals she had engaged for that purpose, would have been justified in experiencing the same delays: Djakovic v Perez [2015] NSWCA 174, at [15] – [17], following Karambelas v Zaknic (No 2) [2014] NSWCA 433, at [16].

36. However, the defendant argues in the present proceedings, that the delays incurred between 25 August 2017 and the filing of the present summons on 2 November 2017, is another relevant period of delay requiring the provision of a full and satisfactory explanation from the plaintiff.

37. In that regard, the period from 25 August 2017 to 2 November 2017, a period of about 10 weeks, was not an unreasonable time to consider the position of the dismissed summons, and to collate what I infer to be more detailed evidence, although I have not seen the evidence relied upon in the earlier dismissed summons proceedings. A reasonable person in the position of the plaintiff would have experienced a like delay whilst that person’s lawyers mounted a fresh application I consider that the defendant was not relevantly prejudiced by those relatively short period.

38. As to the period from 2 November 2017 to the hearing of the Summons on 7 July 2018, the plaintiff, like any other litigant, was simply waiting for the processes of the Court to take their course: s66(2) of the MAC Act.

39. The Court’s file records that in that period, an initial return date for the summons was the subject of appearances at a call-over on 13 November 2017, at which time a directions hearing was fixed for 8 February 2018. At that time the hearing date for 17 July 2018 was set. Any other litigant in the position of the plaintiff would have experienced that same delay in those circumstances: s 66(2) of the MAC Act.

Disposition

40. I find that the plaintiff has provided a full and satisfactory explanation for the delay of which the defendant complains and she is therefore entitled to the leave she seeks in order to commence proceedings although more than 3 years from the date of the accident.

Costs

41. The plaintiff makes an application for her costs of this summons hearing to be paid to be by the defendant. That application is made because the conduct of the insurer has precipitated the proceedings by the issuing of the s110 Notice. I accept that submission. I do not accept the submission of the defendant, based on the decision in Holt v Wynter (2000) 49 NSWLR 128, at [121], which predated the advent of the Civil Procedure Act 2000. As the plaintiff has been successful in her application, I consider that her costs of the application should be paid by the defendant on the ordinary basis unless a party is able to show the basis for some other costs order.

Orders

42. I make the following orders:

1. Pursuant to s 109(3) of the Motor Accidents Compensation Act 1999, the plaintiff has provided a full and satisfactory explanation for the delay in commencing these proceedings, and she is therefore granted leave to commence proceedings arising from a motor accident in which she was injured on 14 September 2011;

2. The leave referred to in order (1) above is to commence on 20 March 2017; as requested;

3. The defendant is to pay the plaintiff’s costs of the summons hearing on the ordinary basis unless a party is able to show the basis for some other costs order;

4. Liberty to apply on 7 days notice if further or other orders are required

I CERTIFY THAT THIS AND THE PRECEDING 10 PAGES CONSTITUTE A TRUE COPY OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE LEONARD LEVY SC DELIVERED IN THESE PROCEEDINGS

Associate

19 July 2018

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Decision last updated: 19 July 2018