Margaret Baker v Ross Baker

[2017] NSWDC 93

District Court

New South Wales

Medium Neutral Citation:

Margaret Baker v Ross Baker [2017] NSWDC 93

Hearing dates:

7 April 2017

Date of orders:

05 May 2017

Decision date:

05 May 2017

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

(1) The defendant Notice of Motion filed 13 December 2016 be dismissed.

 

(2) Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016.

 (3) The plaintiff’s costs of the defendant’s Notice of Motion filed 13 December 2016 and the plaintiff’s Notice of Motion filed 27 January 2017 be the plaintiff’s costs in the cause.

Catchwords:

“full and satisfactory explanation”; “knowledge and belief”

Legislation Cited:

Motor Accidents Compensation Act 1999, ss 72, 73 and 109

Cases Cited:

Dijakovic v Perez [2015] NSWCA 174
Sauer v Allianz Australia Insurance [2006] NSWCA 364; (2006) 47 MVR 220
Itek Graphix Pty. Limited v Elliott [2002] NSWCA 104
Smith v Grant [2006] NSWCA 244
Salido v Nominal Defendant (1993) 32 NSWLR 524; (1993) 18 MVR 1; (1993) Aust Torts Reports 81-258
State of New South Wales v Gillett [2012] NSWCA 83
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Karambelas v Zaknic (No. 2) [2014] NSWCA 433

Category:

Procedural and other rulings

Parties:

Margaret Baker (Plaintiff)
Ross Baker (Defendant)

Representation:

Counsel:
Mr David Baran (Plaintiff)
Mr Anthony Renshaw (Defendant)

  Solicitors:
John McGuire & Associates (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s):

2016/00305409

Publication restriction:

None

Judgment

1. By Statement of Claim filed 13 October 2016, Margaret Baker sues for damages consequent of personal injuries suffered by her in a motor vehicle accident on 8 December 2006 when she was a front seat passenger in a motor vehicle driven by her husband, Ross Baker. The negligence alleged is that Mr Baker drove whilst knowing that he suffered a medical condition which made him prone to blackouts. This in fact occurred, causing him to lose control of the motor vehicle and crash.

2. Quite obviously the proceedings were commenced nearly 10 years after the accident. The Notices of Motion determined in these reasons are brought pursuant to ss 72 and 73 and 109 Motor Accidents Compensation Act 1999 NSW (MACA), which sections deal respectively with the time limits for making a claim and for commencement of Court proceedings.

3. There are two Notices of Motion for determination, as follows:

1. filed by the defendant on 13 December 2016 seeking that the proceedings be dismissed for breach of ss 72 and 73 MACA, and separately that the proceedings be dismissed for breach of s 109 MACA; and

2. filed for the plaintiff on 27 January 2017, that the time for filing the Statement of Claim be extended to 14 October 2016 pursuant to s 109 MACA.

The defendant seeks that the plaintiff pay its costs of the motion and of the proceedings. The plaintiff seeks an order that costs be costs in the cause.

4. On 4 October 2016, a Certificate of Exemption from the Claims Assessment Resolution Service was issued under s 92 (1) (a) MACA because the Insurer denied liability for the claim.

5. For the purposes of determination of the Notices of Motion, the defendant conceded the following:

1. that the total damages of all kinds likely to be awarded to the plaintiff if her claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 MACA as at the date of the motor accident: s 109 (3) MACA; and

2. from the time the plaintiff first contacted her solicitors on about 11 January 2016 (plaintiff affidavit 29 March 2017 at paragraph [37]), the plaintiff by her solicitors acted with expedition.

6. The following affidavits were read without objection:

1. plaintiff, dated 29 March 2017;

2. plaintiff’s solicitor, Mr John McGuire, dated 29 March 2017; and

3. defendant’s solicitor, Ms Larissa Mepstead, dated 22 December 2016.

The Single Issue

7. The single question for determination is whether the plaintiff has provided a full and satisfactory explanation for her delay in both making the claim (s 73 (7) MACA), and such that the Court would grant leave for the commencement of proceedings more than 3 years after the date of the accident (s 109 (3) (a) MACA). The defendant did not raise any other opposition to the granting of leave for the plaintiff to commence proceedings.

8. The onus of satisfying the Court of her provision of a full and satisfactory explanation for delay is upon the plaintiff: Dijakovic v Perez [2015] NSWCA 174 at [38] per Gleeson JA with whom the Court agreed. The Court must dismiss the proceedings unless satisfied that the plaintiff has a full and satisfactory explanation for the delay in the making of the claim: s 73 (7) MACA. The Court must refuse leave to commence proceedings out of time unless the plaintiff has provided a full and satisfactory explanation to the Court for the delay: s 109 (3) (a) MACA.

9. The compendious approach adopted by the parties in argument was to invite the Court to determine whether the explanation given by the plaintiff in her affidavit, particularly at paragraph [32] upon which she was particularly cross-examined, satisfied her obligation under s 73 MACA and separately in relation to maintenance of proceedings under s 109 MACA of providing a full and satisfactory explanation.

10. The period of delay requiring a full and satisfactory explanation is the period after 8 June 2007 (6 months after the date of the motor vehicle accident on 8 December 2006) until about 9 February 2016, being the date on which the plaintiff by her solicitor served the Motor Accident Personal Injury Claim Form together with Medical Certificate upon the Insurer. Accordingly, the delay in the making of the claim was approximately 8 years and 8 months. The Insurer promptly rejected the plaintiff’s explanation for delay on the basis that it was not full and satisfactory, and promptly denied liability.

The Relevant Statutory Provisions

11. The relevant definition of “full and satisfactory explanation” is provided in s 66 (2) within Chapter 4 of MACA. Chapter 4 includes ss 66 to 121. 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.”

12. Section 72 provides that a claim must be made by giving notice of the claim to the third party insurer within six months after the date of the motor accident.

13. Section 73 provides for the late making of claims. The section provides:

“(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a "late claim") if the claim provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.

(2)   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.

(3)   If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

the insurer has lost the right to reject the claim on the ground of delay, or

(b)   a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or

(c)   the claim is referred only for a certificate of exemption from assessment under Part 4.4.

(4)   The insurer loses the right to reject a late claim on the ground of delay if the insurer:

(a)   does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or

(b)   does not, within 2 months after receiving an explanation for the delay, reject the explanation.

(5)   If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.

(6)   An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.

(7)   On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.

(8)   In this section, a reference to an insurer includes a reference to the person against whom the claim is made.”

14. I understand the compendious approach adopted by the parties to engage the provisions of s 73 as follows:

1. s 73 (1) - the claim being made late, the plaintiff provided her explanation for the delay to the Insurer in the first instance;

2. s 73 (2) – on the invitation of defendant counsel that it was unnecessary to do so, the plaintiff did not tender what appeared to be a folder of literature of the course of her significant medical treatment from the accident to date. That treatment is efficiently summarised in her affidavit and referred to below. The plaintiff does not submit that on-set of symptoms was not serious from the start;

3. s 73 (3) – the claim was referred only for a Certificate of Exemption from Assessment under Part 4.4;

4. s 73 (4) – the Insurer retained the right to reject the plaintiff’s late claim on the ground of delay. It asked the plaintiff to provide a full and satisfactory explanation for the delay within 2 months after receiving the claim (s 73 (4) (a)). Within 2 months after receipt of the explanation, the Insurer rejected it (s 73 (4) (b));

5. s 73 (5) - the Insurer proceeds under this sub-section for the proceedings to be dismissed, the plaintiff’s claim being “a late claim”;

6. s 73 (6) – the Insurer proceeds by its Notice of Motion filed not more than 2 months after the service of the Statement of Claim;

7. s 73 (7) – the parties agree that the Court must dismiss the proceedings unless the plaintiff satisfies her onus that she has a full and satisfactory explanation for the delay; and

8. s 73 (8) – no issue arose under this sub-section.

15. Section 109 provides as follows:

“(1)   A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a)   the date of the motor accident to which the claim relates, or

(b)   if the claim is made in respect of the death of a person-the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2)   Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(3)    The leave of the court must not be granted unless:

(a)   the claimant provides a full and satisfactory explanation to the court for the delay, and

(b)   the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident.

(4)   Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant’s age or mental capacity.

(5)   The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.

16. In the compendious approach adopted by the parties, the provisions of s 109 were agreed, as I understood the argument, to apply as follows:

1. s 109 (1) (a) – the plaintiff is not entitled to commence proceedings out of time except by success in this application for leave under s 109 (3);

2. s 109 (2) – the claim was not referred to the Authority for assessment, and accordingly this sub-section did not apply to the timing of the commencement of the proceedings;

3. s 109 (3) (a) – the defendant having conceded the 25% threshold for damages described in s 109 (3) (b), the plaintiff bore the sole onus of proof that she provides a full and satisfactory explanation to the Court for the delay, the test being an objective one;

4. s 109 (4) – not applicable;

5. s 109 (5) – in compliance with this sub-section, neither party submitted that the Limitation Act 1969 applied.

17. Whilst delay gives rise to a presumption of prejudice to the defendant; the defendant did not submit that the granting of the extension would result in actual prejudice. Accordingly, it was not submitted that in the exercise of the discretion provided for s 73 (7) and s 109 (3), I am to weigh consideration of prejudice to the defendant: see for instance Sauer v Allianz Australia Insurance (2006) 47 MVR 220; [2006] NSWCA 364.

The Plaintiff’s Evidence – Affidavit dated 29 March 2017

18. The plaintiff was born on 16 May 1937. At the date of the accident, she was 69 years of age, and at the date of hearing of the Notices of Motion, she was nearly 80 years of age. She retired from her employment as Secretary of Parramatta East Primary School in 1996, and at the date of the accident was living at Mollymook Beach with her husband the defendant driver, Mr Ross Baker, whom she married on 26 March 1960.

19. Her evidence was that the accident on 8 December 2006 occurred when her husband “blacked out” whilst driving causing the car to veer to the left, mount the footpath, crash through metal fencing, plough through bushes, and down a steep embankment into a creek. She described the trauma experienced in terms of:

“I was thrown around very forcefully as the vehicle rolled onto its side. I was trapped in my seatbelt while the vehicle was partly submerged”. (at [5])

20. The accident was reported to the police. After extraction from the vehicle, an ambulance conveyed the plaintiff to the Shoalhaven District Memorial Hospital, and the following afternoon (9 December 2006), the plaintiff was transferred to Wollongong Hospital where she came under the care of Dr Kumar, orthopaedic surgeon, for about 3 weeks. She suffered a fracture of the T12 vertebra and other injuries.

21. The plaintiff described a course of significant treatment for the significant injuries and treatment for unrelated medical conditions in the period preceding her commencement of the claim as follows:

“11   Following the accident, I wore a back brace for approximately 6 months. This was very inconvenient, especially because the back brace was not perfectly suited to fit me, and one of metal components kept rubbing on my skin.

12   The brace was taken off on about 2 May 2007. I then underwent two physiotherapy sessions at Milton Hospital on 5 and 13 June 2007.

13   I commenced hydrotherapy at the local pool on 21 June 2007, which continued weekly for the rest of the year. However, I had to stop as exercising in the pool seemed to trigger bladder infections.

14   I commenced physiotherapy with David Kneeshaw on 30 October 2007. Throughout 2007 and 2008, I consulted Mr Kneeshaw approximately twelve times.

15   I was referred by Dr Woods, General Practitioner, to Chris Symons, Psychologist, at Milton in February 2008. I consulted Mr Symons on 7 February and 18 February 2008 because of my chronic pain, depression and anxiety.

16   I then consulted Jennifer Clark, Psychologist, of Milton, for pain management on four occasions between 24 January 2009 and March 2009.

17   I commenced Chiropractic manipulations on 10 March 2009 at Ulladulla, with Michael Lizak. I had approximately nine monthly sessions.

18   I underwent spinal injections on three occasions, performed by Dr Chandran, Neurosurgeon, in Canberra in about 2009. This provided only temporary relief.

19   In 2010, I decided to try Bowen Treatment (a remedial hands-on-therapy applied using gentle pressure) with Kerry Davenport. I had approximately nine sessions between January and June 2010. However, this treatment was not successful.

20   Since late March 2012, up to the present time, I have required morphine patches to managing the continuing severe pain. I use a weekly dose of 40ml patches, as well as Panadeine Forte.

21   I have had continuing problems with back and have found that remedial massages help greatly. I have undergone approximately one remedial massage session per month since February 2012 (approximately 70 sessions to date).

22   On 3 January 2016, I attended Dr. Ferris, Pain Management Specialist in Nowra, having been referred by my then General Practitioner, Dr Macartney. Dr Ferris arranged for injections in my lumbar spine which took place on 10 February 2016 at Nowra Private Hospital. I was reviewed by Dr Ferris on 7 March 2016, 26 April 2016, 4 July 2016 and 18 October 2016. Dr Ferris arranged a further lumbar spine CT scan which took place on 11 October 2016.

23   I have been under the care of various doctors at the Milton Medical Centre from 30 January 2006 to the present time. I have attended the medical practice approximately 290 times since the motor vehicle accident to date. Many of those visits have been partially or totally related to my back pain or psychological problems arising from the accident.

24   I addition to the above treatment related to the accident, I also underwent surgery on three occasions for unrelated problems between September 2011 and late 2015, including:

(i)   a left knee replacement surgery in Nowra Private Hospital on 21 September 2011. It took me approximately three months to fully recover from the surgery;

(ii)   a hernia repair operation at the Sydney Adventist Hospital in Wahroonga on 21 December 2013. I had follow up consultations with Professor Falk on 27 February and on 1 March 2014; as well as six appointments for B12 injections (the last one being in August 2014);

(iii)   cataract surgery on both eyes at Nowra Private Hospital at the end of 2015.”

22. The plaintiff set out her claimed inability to perform most domestic chores including cooking, cleaning, ironing or gardening requiring she and her husband to retain a cleaner fortnightly and a woman to assist with the laundry on a weekly basis. She described her husband as performing significant amounts of domestic services which she would otherwise perform but for her injuries.

23. The plaintiff claimed the use of a “four-wheel-walker” indoors on occasion, and the requirement for a walking stick outdoors if her husband is not accompanying her.

24. That the plaintiff has undergone that significant course of treatment for pain and depression and involving a great number of attendances upon her local medical officer in addition to specialist medical treatment, and has required on-going morphine patches and Panadeine Forte must, on a worldly experience basis, indicate her focus upon achievement of best rehabilitation state. This was not contested by the defendant.

25. The plaintiff deposed that her mobility was “very restricted” and that she was “just concentrating on trying to get better” for the first six months following the accident, and that between 2011 and 2015, she was preoccupied for a significant period with the unrelated surgical procedures. Her pain had not improved as she had hoped, so when a retired solicitor friend in a conversation unrelated to legal proceedings, suggested she consult a solicitor about making a claim, she did so.

26. Most significantly, she deposed as follows:

“32   For many years after the accident, I did not know I had any legal rights to lodge a claim. Because my husband Ross lost consciousness in the accident, I genuinely believed that nobody could be held responsible. I am not legally minded and did not know that I should seek legal advice.

…

36   In about early 2016, I had a telephone discussion with a solicitor friend about an unrelated matter. The subject of my accident and on-going pain came up, and she suggested to me that I was potentially eligible to lodge a claim. She recommended that I seek legal advice from a personal injury lawyer.

…

38   It was only after receiving advice from Mr McGuire that I realised that I could pursue a motor accident claim against Ross. Mr McGuire also made me aware for the first time of the time limits involved to lodge a claim. I instructed Mr McGuire to lodge my claim, and after it was rejected, to commence a Court proceedings.”

27. In her Statutory Declaration made 25 May 2016, served on the Insurer on or about 1 June 2016, the plaintiff stated:

“24   The main reason I did not file a claim earlier is that I did not know I had a case. Although Ross was driving, he lost consciousness and I genuinely believed that in such a case nobody could be held responsible.

25   I also hoped that I would get quickly better and would not need to worry about accident-related expenses for too long after the accident occurred. Unfortunately, it has now been almost 10 years and my symptoms are not improving.

26   I was further concerned about bringing a claim against my husband as I did not really understand the legal implications.”

28. The plaintiff and her husband had, prior to the making of this claim, only retained the services of a solicitor when they made their wills and on the purchase and sale of their home. That was when they had lived in Parramatta.

29. In cross-examination, the plaintiff identified the friend to whom she spoke in January 2016 as Ms Marita Ranclaud, who was a retired solicitor. Mr McGuire deposed that the plaintiff contacted his office on 11 January 2016, and he consulted with her on 29 January 2016. That the plaintiff so quickly sought the advice of a solicitor following speaking to Ms Ranclaud, in my opinion, is consistent with the actions of a relatively elderly, retired person, being previously unaware that she had legal rights to pursue.

30. To my observation, the plaintiff was a frank and open witness.

31. Given the significant hospitalisation, medical treatment and history of pain; that the plaintiff did not seek legal advice for the prosecution of her claim prior to January 2016 is consistent with her not having previously appreciated that she could do so. The history of her medical course and suffering consequent of the accident suggests that she would have engaged a solicitor for the commencement of a claim, as she ultimately did, had she been aware that she could do so from the date of the accident.

32. During cross-examination, the plaintiff was unwavering in her evidence that until receiving advice from Mr McGuire she simply thought the motor vehicle collision was an accident for which nobody could be held responsible.

33. In response to the cross-examiner’s suggestion that her husband was at fault because he was aware that his cardiac condition caused blackouts and that he should not have been driving in that state; the plaintiff responded that she understood from what her husband had told her that before those events of reduced consciousness, he would get a cough as a warning permitting him to pull over before blacking out.

34. In response to the affirmative suggestion in cross-examination that she believed that she did not have a claim, at one point the plaintiff responded that she did not at any time think of suing, and had never thought about whether she had rights to sue or not.

Consideration

35. The defendant’s arguments against a finding of “full and satisfactory explanation” were as follows:

1. firstly, that the plaintiff’s evidence amounted to her frankly saying that she had not turned her mind to her legal right to sue was not a reasonable explanation;

2. secondly, that the plaintiff’s evidence that she believed the motor vehicle collision to be a pure accident was inconsistent with her not directing her mind to whether or not she could sue;

3. thirdly, when assessed on an objective basis, it was unreasonable for the plaintiff not to have sought advice on the question of whether or not she could sue.

36. I accept the plaintiff’s evidence that until speaking with her friend and retired solicitor, Ms Ranclaud, in January 2016, that the plaintiff considered her husband’s “blackout” which caused the accident, to be an innocent and faultless event which did not identify to her any basis which would legally entitle her to claim damages.

37. The defendant referred to Itek Graphix Pty. Limited v Elliott [2002] NSWCA 104 for the proposition that the plaintiff was not permitted “to sit on [her] hands” and that she had to show some diligence or deliberateness explaining her inaction.

38. In my opinion, the judgment of the Court of Appeal in that case, and in particular the judgment of Ipp AJA, does not here support the defendant’s contention. The discretion to grant leave under ss 73 (7) and 109 (3) may not be the general and broad discretion applicable under s 151D (2) Workers’ Compensation Act 1987 considered there. More tellingly however, is that that case considered essentially opposite facts of the present case, in that there the applicant for leave had, following the receipt of legal advice, decided deliberately not to take action. Even in those circumstances, that case stands for the proposition, on the exercise of the discretion under that section, that leave might still be granted in circumstances where the deliberately refraining plaintiff can provide some explanation, both satisfactory and pertinent, to a conclusion that justice would be best served by granting leave: see Smith v Grant [2006] NSWCA 244 at [41]-[44].

39. The defendant also referred to Salido v Nominal Defendant (1993) 32 NSWLR 524; (1993) 18 MVR 1; (1993) Aust Torts Reports 81-258. In Salido, the Court of Appeal considered the Court’s discretion exercised pursuant to the different provisions of ss 42, 43 and 52 Motor Accidents Compensation Act 1988 NSW. At page 528B-C, the Chief Justice said:

“The statute stipulates, in s 43 and s 52, that a claim must be made within a certain time, but it allows for the possibility of delay provided it is fully and satisfactorily explained. It also stipulates, in s 52 (3), that if proceedings are not commenced within a certain time, a full and satisfactory explanation for the delay must be provided to the Court. This is in the context of legislation which goes on to regulate Court proceedings in respect of actions for damages arising out of motor accidents and which, for example, modifies the common law rules of evidence, and substantially alters the basis of assessment of damages.”

and at page 528D:

“The obligation in s 52 (3) is expressed as a condition to be fulfilled if proceedings are commenced. I would infer that parliament intended that failure to comply with a condition means that the proceedings cannot be continued to a successful conclusion; failure to provide the necessary explanation is a ground for dismissal of the proceedings.”

40. The Chief Justice’s exposition of the legislative purpose for and consequence of failure to provide a full and satisfactory explanation is instructive in the application of the present legislation but the present legislation must be applied in its terms. At page 530F, the Chief Justice identified that where legislation does not give a positive indication of the considerations upon which a grant or refusal of leave is to depend, the limits of the discretion are to be found in the subject matter and the scope and purpose of the statute. He observed that the usual purpose of the limitation period is to protect the defendant from the injustice of having to face a stale claim. Sections 72, 73 and 109 MACA invite caution against exposing the insurer to a stale claim unless an explanation satisfying s 66 (2) is provided.

41. At page 532A, the Chief Justice said that the proposition that such leave should not be given lightly is one that provides little assistance. The forensic purpose of such provisions of limitation and requiring leave are cautionary.

42. The Court must exercise the statutory discretion in a judicial manner. Section 66 (2) does not require the applicant for leave to show something special or extraordinary in her application.

43. In Salido on page 532B-C where the Chief Justice said that the “proposition in the course of pointing out that time limits are prescribed for a purpose and, to set them aside, there must be something more than a belief that no harm might come of doing so”, he might have been referring to an applicant who consciously permitted delay whilst holding the belief that no harm would follow from doing so; but, those are not the facts here. In this case, the plaintiff did not hold a belief of no harm falling from permitting a delay because she was not even aware of a delay. She could not have conceived delay unless she perceived that she might have had a cause of action. Once again, her state of mind was a belief that she had suffered injury consequent of the involuntary, faultless lapse of consciousness of her husband.

44. Neither party directed me to case authority dealing with the circumstance of a plaintiff seeking leave to make a claim and to commence proceedings out of time where the delay resulted because their knowledge of the circumstances of the accident caused them to believe that the event occasioning harm was faultless and not warranting their seeking legal advice until being alerted to their misapprehension, such as occurred here in the plaintiff’s discussions with Ms Ranclaud and subsequently Mr McGuire.

45. In State of New South Wales v Gillett [2012] NSWCA 83, the Court of Appeal considered the exercise of discretion to grant leave to commence proceedings out of time under the Limitation Act 1969, s 50D (1). Section 50D (1) was in very different terms to s 66 (2) MACA. Section 50C (1) (a) of the Limitation Act 1969 provided that time commenced to run after the cause of action was discoverable. The Court agreed with the reasons of Beazley JA (as the President then was). At paragraph [93], her Honour said that s 50D provided that a cause of action was discoverable on the first date that the person knows or ought to know, relevantly, the fact that the injury was caused by the fault of the defendant.

46. I find assistance in the Court of Appeal’s reasoning in Gillett’s case that “discoverable” meant knowing the defendant’s conduct was actionable, and that to achieve that knowledge might require receipt of expert advice: [70], [96] and [97] agreeing with what was said by Basten JA in Baker-Morrison v State of New South Wales [2009] NSWCA 35.

47. State of New South Wales v Gillett [2012] NSWCA 83 illustrates that it is not unknown to the law that a plaintiff might be simply unaware that the facts and circumstances known to the plaintiff might to a lawyer identify actionable fault not otherwise perceived by the plaintiff.

48. Section 66 (2) MACA does not, as did s 50D Limitation Act 1969, specify the hurdle of discoverability of fault. What is required here is firstly for the plaintiff to give a full account of her knowledge and belief; and secondly to ask whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay: Smith v Grant [2006] NSWCA 244 at [32].

49. Exercising the evaluative judgment required in the context of the cautionary purpose of ss 66 (2), 72, 73 (7) and 109 (3), in my opinion the plaintiff’s belief that the innocence, as she saw it, of her husband’s actions causing him to lose control of the motor vehicle and her to suffer injury is a full explanation for her failure to make her claim and to commence proceedings within time.

50. In addition, the plaintiff accepted her husband’s assurance that his cough would precede, and so provide warning of, an oncoming blackout in time for him to pull over before losing consciousness. Apparently this did not prove to be correct on 8 December 2006. It follows that she was not aware of the true risk of her husband’s negligence particularised in the Statement of Claim, and therefore was unaware of the connection, as a lawyer might see it, between her personal injury and the defendant’s wrongful act or omission.

51. I do not accept that the plaintiff here “sat on her hands” by not earlier seeking legal advice. I do not accept that her description of self of not having turned her mind to whether or not she had legal rights is inconsistent with her evidence that she did not think she could sue. In my opinion, submissions to that effect by the defendant overlooked the fact, which I have accepted on the evidence, that the plaintiff’s inaction was based upon her understanding that it was just an innocent accident. There was no evidence to the contrary.

52. That explanation was a full account of the plaintiff’s conduct, actions, knowledge and belief from the date of accident until the date on which the explanation was provided. The defendant concedes expeditious prosecution of the plaintiff’s claim from then.

53. Further, in my view, a reasonable person in the position of the plaintiff, being relatively elderly and retired, and holding the belief that the collision resulted from pure accident, would have been justified in experiencing the same delay. The reasonable person is not instinctively litigious. It was quite reasonable for a person (here the plaintiff) to understand that a driver’s loss of consciousness without the warning of a cough which the driver said they could expect, was faultless and not actionable.

54. In conclusion, I accept the veracity of the plaintiff’s evidence that albeit she and her husband were aware of his history of “blackouts”, she expected that the warning of preceding coughing would permit him to pull over if driving before losing consciousness. I further accept that until receiving advice to the contrary in January 2016, the plaintiff considered the involuntary loss of consciousness and loss of control of the motor vehicle to be innocent and faultless, and therefore not legally actionable. In my opinion, that explanation is satisfactory because a reasonable person in the position of the plaintiff would be justified in not realising they had a legal cause of action for damages against her husband.

55. Employing the evaluative judgment or assessment by reference to that objective standard as explained by Gleeson JA (with whom the Court agreed) in Dijakovic v Perez [2015] NSWCA 174 at [16] to [19], and by Basten JA in Smith v Grant [2006] NSWCA 244 at [72] (with whom the Court agreed), I find the delay which occurred was reasonably justifiable. See also Karambelas v Zaknic (No. 2) [2014] NSWCA 433 at [16].

56. Accordingly, in my opinion, the plaintiff has satisfied her onus of establishing that she has provided a full and satisfactory explanation for delay as required by ss 73 (7) and 109 (3) MACA respectively.

Conclusion and Orders

1. The defendant Notice of Motion filed 13 December 2016 be dismissed.

2. Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016.

3. The plaintiff’s costs of the defendant’s Notice of Motion filed 13 December 2016 and the plaintiff’s Notice of Motion filed 27 January 2017 be the plaintiff’s costs in the cause.

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Decision last updated: 05 May 2017