Nouf El Hajjar Bht NSW Trustee and Guardian v Georgoulopoulos

[2017] NSWDC 335

District Court

New South Wales

Medium Neutral Citation:

Nouf El Hajjar BHT NSW Trustee and Guardian v Georgoulopoulos [2017] NSWDC 335

Hearing dates:

22 September 2017Submissions closed 10 November 2017

Date of orders:

16 November 2017

Decision date:

16 November 2017

Jurisdiction:

Civil

Before:

Wilson SC DCJ

Decision:

1   In relation to the defendant’s Amended Notice of Motion filed on 22 June 2017, I make the following orders:

(a) that the defendant’s Notice of Motion be dismissed;
(b) that the defendant pay the plaintiff’s costs of that Notice of Motion;

2   In relation to the plaintiff’s Notice of Motion filed 4 August 2017, I make the following orders:

(a) that the plaintiff be granted leave pursuant to s73(1) of the Motor Accidents Compensation Act 1999 to make a late claim;
(b) that pursuant to s85B(7) of the Motor Accidents Compensation Act 1999 the plaintiff’s claim be reinstated with effect from the date of filing of the Statement of Claim, being 5 February 2016;
(c)   that the costs of the plaintiff’s Notice of Motion be costs in the cause;

3   In relation to both Notices of Motion:

(a)   both parties have leave to apply on 14 days’ notice to vary the costs orders above;
(b)   exhibits are to be returned forthwith.

4   These proceedings and the related proceedings of Hajjar bht New South Wales Trustee and Guardian v AAMI Limited t/a AAMI (2016/38208) are listed for directions before the Judicial Registrar on Thursday 30 November 2017 at 9.30am.

Catchwords:

MOTOR ACCIDENT – late claim – delay in providing particulars – whether an explanation by the claimant’s solicitor is sufficient under s66(2) or whether the explanation must be made by the claimant personally – where claimant under a legal disability - whether defendant lost right to object to late claim by not rejecting explanation in time - whether the claimant has provided an explanation which is full and satisfactory – whether damages of all kinds likely to be awarded exceed 25% of maximum for non-economic loss

Legislation Cited:

Motor Accidents Compensation Act 1999
s66(2), s73, s85B

Cases Cited:

Davis v Swift [2014] NSWCA 458
Walker v Howard [2009] NSWCA 408

Category:

Principal judgment

Parties:

Nouf El Hajjar BHT NSW Trustee and Guardian v Georgoulopoulos

Representation:

Counsel:   Mr P Semmler QC with
      Mr A Campbell (Plaintiff)
      Mr B Wilson (Defendant)

    Solicitors:   Carroll and O’Dea (Plaintiff)
      Sparke Helmore (Defendant)

File Number(s):

2016/38229-002, 003

Publication restriction:

None

Judgment

Background

The evidence

The Plaintiff’s Evidence

The Defendant’s Evidence

The Relevant Legislative Provisions

First Issue - whether the plaintiff has provided a full and satisfactory explanation for the delay in making the claim

Second Issue - whether the plaintiff has provided a full and satisfactory explanation for the failure to provide the required particulars

Third issue - whether the total damages of all kinds likely to be awarded to the claimant are not less than $115,000.00

Disposition and Orders

Judgment

1. There are two applications before the Court. The defendant seeks dismissal of the proceedings for the plaintiff’s failure to lodge a claim form in accordance with s72 of the Motor Accidents Compensation Act 1999 (“the Act”) and the plaintiff’s delay of 18 days in providing particulars to the insurer as required by s85B of the Act.

2. The plaintiff seeks leave to proceed on a late claim and for reinstatement of the claim notwithstanding her delay in complying with s85B of the Act.

Background

3. It is alleged in the Statement of Claim (filed 5 February 2016) that the plaintiff was a pedestrian walking along Canterbury Road at Punchbowl on 28 November 2012. At around the same time the defendant was driving a motor vehicle along that road. It is said that the motor vehicle driven by the defendant collided with the plaintiff “whilst she was walking along Canterbury Road”.

4. The plaintiff’s case against the defendant was advanced on two bases. First, that the defendant was negligent on the grounds set out in paragraph 8 of the Statement of Claim and, in the alternative, that the plaintiff was injured in a blameless motor accident as defined by s7A of the Act.

5. It is alleged that the plaintiff suffered a closed head injury with a resultant brain injury, acute fracture at C5 and a disc herniation between C5/6 and C6/7 requiring a fusion at C5/6. There was also a fracture of the plaintiff’s right ulna and left iliac crest.

6. As will be discussed in greater detail below, the plaintiff was unaware of her right to make a claim for compensation and her obligations to provide particulars and lodge a claim form until she had contact with a solicitor in January 2015. At that time, the time for making a claim under s72 (six months from date of accident) had passed.

7. When the proceedings were commenced on 5 February 2016, it was thought by the defendant that the time for commencement of court proceedings provided under s109 of the Act had also expired. Whilst the defendant’s original Notice of Motion sought dismissal of the proceedings under s109, by Amended Notice of Motion filed in Court on 22 June 2017, the defendant abandoned the s109 point but continued to press its position under ss 73 and 85B(3) of the Act. As the Notices of Motion relied upon by the parties relate to the same subject matter, it is convenient to deal with them simultaneously as the evidence relied upon is the same on both applications.

8. After concluding the hearing of the Motions, an issue arose as to whether, by not rejecting the solicitor’s explanation within two months of receiving it, the defendant lost the right to reject the late claim. Written Submissions were requested and obtained from both parties.

The evidence

The Plaintiff’s Evidence

9. The plaintiff relied upon the following evidence:

1. affidavit of Jelena Prodanovic affirmed on 20 June 2017 (Exhibit A);

2. affidavit of Olivia Mailian affirmed 4 August 2017 (Exhibit B);

3. affidavit of Olivia Mailian affirmed 19 June 2017 (I note that this annexes a Statutory Declaration of the plaintiff declared 20 January 2017) (Exhibit C);

4. affidavit of Diana Farah sworn 3 August 2017 (Exhibit D);

5. documents produced by NSW Police (Exhibit E);

6. oral evidence of Ms Prodanovic (commencing at [T67]).

The Defendant’s Evidence

10. The defendant relied upon the following:

1. documents produced by NSW Police (Exhibit 1);

2. a folder containing three affidavits of Alison Jury, the solicitor for the defendant (Exhibit 2);

3. report by Dr Peter Slezak dated 10 July 2017 (Exhibit 3);

4. Report by Dr John Korber, Radiologist, dated 7 August 2017 (Exhibit 4).

11. In addition, the defendant provided the Court with the following documents:

1. Short Form Procedural Chronology (MFI 1);

2. Defendant’s Outline of Submissions regarding ss 66, 72 and 73;

3. Outline of Defendant’s Submissions regarding s85B.

12. None of the deponents of the affidavits relied upon by either party were required for cross-examination. With leave, Ms Prodanovic gave some limited evidence-in-chief only and was not cross-examined.

The Relevant Legislative Provisions

13. In relation to the claim form, the plaintiff was required pursuant to s72 of the Act to lodge the claim by giving a notice of claim to the insurer within six months of the accident. As the accident occurred on 28 November 2012, the plaintiff was required to provide the notice of claim no later than 28 May 2012. The first time a claim form was lodged with the insurer was 1 June 2015, more than three years after that date.

14. Section 73 of the Act provides a remedy for the late making of claims:

73 Late making of claims

(cf s 43A MAA) 

(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 claimant 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:

(a)    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. 

15. As can be seen, the section permits a late claim if the plaintiff provides the insurer with a clear and satisfactory explanation for the delay in making a claim (s73(1)) or if the Court grants leave (s73(7)).

16. As for the meaning for full and satisfactory explanation, the Act defines that phrase in s66(2) of the Act, as follows:

(2) 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. 

17. This sub-section has been the subject of appellate consideration in Walker v Howard [2009] NSWCA 408 (16 December 2009).

18. If court proceedings are commenced on the late claim the insurer may apply to have the proceedings dismissed on the grounds of delay (s73(5)) and the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim (s73(7)).

19. Section 85 of the Act provides a duty for a claimant to co-operate with the insurer and in particular to furnish specified information (s85(2)).

20. More particularly, s85A requires a claimant to provide relevant particulars of a claim sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.

21. This application relates, inter alia, to s85B which provides as follows:

85B Consequences of failure to provide relevant particulars of claim

(1)    If after a period of 2 years and 6 months since the motor accident concerned a claimant has failed without reasonable excuse to provide the insurer with all relevant particulars about the claim (as required by section 85A), the insurer may by a written direction given to the claimant within 2 months after the end of that period require the claimant to provide those particulars. 

(2)   The insurer's direction must be given in the form approved by the Authority. 

(3)    If the claimant does not comply with the direction within 3 months after it is given, the claimant is taken to have withdrawn the claim. 

(4)    The claimant may make an application for reinstatement of the claim: 

(a) to the Authority for a claim that is not exempt from assessment under Part 4.4, or 

(b)    to a court of competent jurisdiction for a claim that is exempt from assessment under Part 4.4. 

(5)    An application for reinstatement made to the Authority is to be referred for assessment as a dispute under section 96: 

(a)    by a claims assessor if made less than 3 years after the date of the motor accident, or 

(b)    by the Principal Claims Assessor if made 3 years or more after the date of the motor accident. 

(6)    If the application for reinstatement is made less than 3 years after the date of the motor accident, the claim is to be reinstated if the court or claims assessor is satisfied that the claimant has a full and satisfactory explanation for the failure to provide the required particulars. 

(7)    If the application for reinstatement is made 3 years or more after the date of the motor accident, the claim is to be reinstated if the court or the Principal Claims Assessor is satisfied that: 

(a)   the claimant has a full and satisfactory explanation for the failure to provide the required particulars, 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 motor accident. 

(8)    This section does not apply to a claim that, as at 2 years and 6 months since the motor accident concerned, is the subject of a determination by a medical assessor declining to make an assessment under Part 3.4 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent. 

22. The defendant relies upon s85B. The direction to provide particulars was issued by the insurer on 2 July 2015, within the required period of two months after two years and six months post-accident (s85B(1)).

23. There is no dispute that the insurer’s direction provided on 2 July 2015 was in a form approved by the Authority.

24. The plaintiff then had a period of three months to comply with the direction and provide the particulars. That is, the particulars ought to have been provided pursuant to the s85B(1) direction on or before 2 October 2015 (s85B(3)).

25. The plaintiff in fact provided the particulars about 18 days later on or about 20 October 2015.

26. The consequence of the plaintiff’s failure to provide the particulars within the requisite period is that, at the expiration of the three month period, the plaintiff was taken to have withdrawn her claim (s85B(3)).

27. Relief is afforded to the plaintiff under sub-section 4 which permits an application for reinstatement of the claim to a court with competent jurisdiction. Prayer two of the plaintiff’s Notice of Motion filed 4 August 2017 seeks reinstatement of the claim.

28. As the application for reinstatement was made three or more years after the date of the accident then it was necessary for the plaintiff to satisfy the Court that:

1. the claimant has a full and satisfactory explanation for the failure to provide the required particulars, and

2. 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 s134 as at the date of the motor accident.

29. As for the latter, the monetary threshold which the plaintiff must meet, it was agreed was $115,000.00.

30. Accordingly, the following matters fall for consideration in respect of the Notices of Motion filed by the parties:

1. whether the plaintiff has provided a full and satisfactory explanation for the delay in making the claim;

2. whether the plaintiff has provided a full and satisfactory explanation for the failure to provide the required particulars in time;

3. whether the total damages of all kinds likely to be awarded to the claimant are not less than $115,000.00.

First Issue - whether the plaintiff has provided a full and satisfactory explanation for the delay in making the claim

31. The period for which the explanation is required is up to the date of providing the explanation for the delay. The following dates are pertinent:

(a)   1994 – plaintiff’s year of birth (now 23 years of age);

(b)   28 November 2012 – subject motor vehicle accident;

(c)   4 January 2013 – plaintiff assessed by Teresa Lee, Senior Clinical Neuropsychologist, at the Prince of Wales Hospital (Exhibit A, page 205).

The result of the assessment was that the plaintiff was determined to have a full scale IQ of just 62. There were also impairments of memory as well as frontal and executive functions.

Ms Lee stated:

Using her relatively limited educational attainment and her fund of general knowledge as indicators, Nouf’s estimated intellectual functioning would likely be of a low average and below level. Her current intellectual functioning on formal assessment revealed a Full Scale IQ of 62, which is at the “mildly impaired” level. Her visual memory appears intact. There are subjective complaints of poor memory after the accident(s), but formal testing was not able to be conducted because of her refusal to participate. While her performance on tests that assessed frontal lobe functions are consistent with her intellectual capability, her behaviour, characterised by distractibility, impulsivity, and disinhibition, is also reflective of frontal involvement in her presentation.

It is considered that her current neuropsychological profile is consistent with her relatively low level of intellectual functioning and that chronic microvascular ischaemic changes, which are likely associated with her smoking and drug use.

(d)   28 May 2013 – claim form due;

(e)   20 January 2015 – Carroll and O’Dea, Lawyers (“COD”) contacted by Marilyn Brown, a Corrections Officer from the Silverwater Women’s Correctional Centre (“Silverwater”) on behalf of the plaintiff with respect to obtaining legal advice for the plaintiff who had been involved in the subject motor vehicle accident;

(f)   22 January 2015 – Diane Farah, solicitor of COD, telephoned Ms Brown in response to her inquiry. Arrangements were made for Ms Farah to attend Silverwater;

(g)   29 January 2015 – Ms Farah attended Silverwater and obtained instructions from the plaintiff to investigate and to act on her behalf in respect of two motor vehicle accidents, including the subject accident;

Plaintiff informed Ms Farah that she had not previously completed a Personal Injury Claim Form (“PICF”) in respect of either accident. She was unaware of any limitation dates applicable to the accidents, including the six month period in which to give notice of claim and the three year period in which to commence proceedings;

The plaintiff was unable to confirm with Ms Farah the following:

(i)   the exact date of the accident;

(ii)   the identity of the insurer of the drivers at fault; and

(iii)   the registration numbers of the vehicles at fault.

With Ms Farah’s assistance, two PICFs were completed containing the limited information provided by the plaintiff;

Upon Ms Farah’s return from Silverwater, the claims in respect of which Ms Farah had been instructed by the plaintiff, were allocated to Jelena Prodanovic, solicitor, for management;

(h)   29 January 2015 – 1 June 2015 – investigations and enquiries undertaken by Ms Prodanovic in order to gather sufficient information to complete the PICF (see Exhibit A, paragraphs 7 to 46);

(i)   3 February 2015 - plaintiff examined by Dr Andrew Watt, Psychiatrist at the Silverwater Women’s Business Centre, for the purpose of completing a Disability Support Pension Medical Report (Exhibit A, page 213). Dr Watt diagnosed “mild intellectual disability” and identified symptoms as including “limited understanding of complex instructions. Limited written language and maths skills”. The report also refers to impaired concentration, planning and organising;

(j)   16 February 2015 – report by Kris Wilson, Clinical Psychologist of Corrective Services (Exhibit A, page 208). The plaintiff was being held in the Mum Shirl Unit (“MSU”) at the Silverwater Women’s Correctional Centre. That Unit was a 19 bed facility providing safe and secure housing for female offenders with complex personality, developmental, psychological and psychiatric issues.

The plaintiff’s IQ was assessed at 63 which “indicated that 99% of age related peers would be expected to perform better on similar measures of intelligence”;

(k)   Early March 2015 – plaintiff released from Silverwater, homeless;

(l)   1 June 2015 – PICF lodged with insurer without a Medical Certificate;

(m)   8 June 2015 – insurer wrote to COD identifying information missing from the PICF and requesting a full and satisfactory explanation for the delay in making the claim (Exhibit A, annexure AA, page 86 of affidavit). Most of the information sought (save for the Medical Certificate) was contained in the letter enclosing the claim form;

(n)   11 June 2015 – COD wrote to Dr Selim, GP, requesting a completed Medical Certificate;

(o)   16 June 2015 – COD wrote to insurer acknowledging letter of 8 June 2015 indicating “we advise that our client has no fixed address and that we are currently unable to locate her”. COD again requested the insurer to receive the claim form, indicating that they were in the process of obtaining a Medical Certificate (Exhibit A, page 160);

(p)   22 June 2015 – letter from insurer to COD maintaining its rejection of the PICF and requesting a full and satisfactory explanation for the delay;

(q) 2 July 2015 – insurer wrote to COD requesting particulars in accordance with s85B of the Act;

(r)   10 August 2015 – Medical Certificate completed by Dr Salim (Exhibit A, page 178);

(s)   24 August 2015 – insurer issues s81 Notice denying liability on the basis the plaintiff had not complied with all necessary procedural steps (Exhibit A, page 180);

(t)   2 September 2015 – application for appointment of a Financial Manager and/or appointment of a guardian completed in respect of the plaintiff. In an attachment to the application in answer to question 3A it was stated:

Ms El Hajjar is presently 21 years of age and has been persistently homeless for an extensive period of time.

She is a sex worker and often sleeps on the streets when not working. She has tested positive for Hepatitis C and has a long term heroin addiction which influences her capacity to maintain housing and her basis [sic] needs.

and

In view of the Claimant’s circumstances and the evidence of a mild intellectual disability and the opinion that the claimant would struggle to understand complex and multi-level instructions, the Claimant’s instructing solicitors are concerned about her capacity to provide instructions in relation to settlement of her motor accident claims, her capacity to sign a Deed of Release with the respective insurers and the extent to which the money will be spent in such a way that is in the Claimant’s best interest.

The documents also refer to various medical assessments which confirm that the plaintiff suffered an intellectual disability;

(u)   9 September 2015 - COD lodge second PICF dated 1 September 2015 with insurer including Medical Certificate and hospital notes (Exhibit A, page 242);

(v)   10 September 2015 - the insurer rejects the second claim form as “invalid” as an earlier claim form lodged. NRMA requests that the first claim form be amended and completed in full (Exhibit A, page 253);

(w)   6 October 2015 - letter from COD to insurer requesting that the insurer accepts the second claim form as the first claim form “was prepared at a time when the claimant’s instructing solicitors were not aware of her complete personal circumstances and the presence of a brain injury” (Exhibit A, page 254);

(x)   8 October 2015 - letter from insurer to COD maintaining rejection of second claim form (Exhibit A, page 256);

(y)   14 October 2015 - Statutory Declaration declared by Jelena Prodanovic (Exhibit A, page 263) and sent to AAMI in respect of the first accident. The Statutory Declaration sets out steps taken by Ms Prodanovic from 29 January 2015 to 29 September 2015. The explanation was accepted by AAMI as full and satisfactory;

(z)   20 October 2015 - section 85A particulars provided by COD to NRMA (Exhibit A, page 275);

(aa)   9 November 2015 - COD serve Statutory Declaration of Jelena Prodanovic declared 9 November 2015 on insurer “providing an explanation for the delay in lodgement of our client’s claim form” (Exhibit A, page 288). The Statutory Declaration sets out steps taken by Ms Prodanovic in the period 29 January 2015 through to 22 October 2015. The covering letter explains that due to her circumstances, the plaintiff is unable to provide a statutory declaration but that one would be provided “at our earliest possible convenience”;

(bb)   10 November 2015 – Guardianship Order made by the New South Wales Civil and Administrative Tribunal (NCAT”) (Exhibit A, page 300);

Financial Management Order made by NCAT (Exhibit A, page 302);

(cc)   On or about 19 November 2015, solicitors, Sparke Helmore Lawyers (“SHL”), appointed by NRMA;

(dd)   2 December 2015 – claim exempted from assessment by the Claims Assessment and Resolution Service (Exhibit A, page 314);

(ee)   15 February 2016 – letter from SHL acting for insurer to COD confirming rejection of claim on basis that the claimant had not provided a full and satisfactory explanation.

32. After completing the above chronology, it became apparent that the plaintiff’s solicitor had provided an explanation by a detailed Statutory Declaration on 9 November 2015. The insurer had two months after receiving the explanation to reject the explanation (s73(4)(b)). It was not until a letter dated 15 February 2016 from SHL to COD that the solicitor for the plaintiff was informed that the insurer maintained that the plaintiff had failed to provide a full and satisfactory explanation. That, of course, is outside the two month period within which the insurer has the right to reject the explanation.

33. As a consequence, on 23 October 2017 the Court wrote to counsel and solicitors for the parties asking them to address three questions. Namely:

Question 1: Was the Statutory Declaration of Jelena Prodanovic declared 9 November 2015 (served on insurer the same day) an explanation for the delay in lodging the claim within the meaning of s73?

Question 2: Did the insurer reject that explanation within two months of receiving it?

Question 3:   Has the insurer lost the right to reject the late claim on the ground of delay by not rejecting the explanation of 9 November 2015 until 15 February 2016?

34. In Written Submissions dated 2 November 2017, counsel for the defendant answered the first question in the negative and provided four reasons for doing so.

35. The first reason advanced was that s73 required the explanation to be provided by the “claimant”. Plainly the claimant is the plaintiff in the proceedings and not her solicitor. It was submitted “a solicitor (that is agent of the claimant) ought not be regarded as a claimant within the meaning of s3, s66 or s73”.

36. Whilst plainly, the solicitor is not the claimant, this does not prevent the solicitor in providing an explanation under s73. Indeed in the vast majority of cases, a solicitor will swear an affidavit or statutory declaration in support of a claimant’s application for leave in circumstances such as the present.

37. Accordingly, I find that the Statutory Declaration of Ms Prodanovic declared 9 November 2015 was an explanation for the delay in lodging the claim within the meaning of s73.

38. The second basis upon which counsel for the defendant seeks to argue that the Statutory Declaration was not an explanation is by reference to the decision of the Full Bench of the New South Wales Court of Appeal in Walker v Howard (supra). In that case the plaintiff suffered serious brain damage as a consequence of the accident and an explanation for delay was provided by his solicitor, Mr Day. One need not look no further than the Head Note to the decision for comfort in finding that the solicitor is a person who can provide an explanation within the meaning of s73. In paragraph 1 of the Head Note, it is stated:

(a)   a claimant who is legally incapacitated because of age or mental incapacity is still required to provide a full and satisfactory explanation for the delay in commencing the claim;

and

(b)   the responsibility of a claimant to provide a full and satisfactory explanation can be met through the evidence of others and does not require the claimant, or his or her tutor if they be mentally incapacitated, to give evidence.

39. The Court considered whether it was necessary for the tutor, Mr McInerney to provide evidence going to the explanation. It held that it was not necessary for the tutor to do so (see [110 and following]).

40. There is no doubt that the plaintiff in the present case does suffer from a legal incapacity. So much is established by the decision of NCAT to make a Financial Management Order on 10 November 2015, one day after the Statutory Declaration by the solicitor was sent to NRMA. In making that determination NCAT relied upon a neuropsychological assessment performed by Ms Lee on 4 January 2013 together with an assessment by Kris Wilson of 16 February 2015. Those assessments clearly demonstrated intellectual impairment which warranted the appointment of a Financial Manager.

41. During the course of addresses, it was suggested by counsel for the defendant that an employee of the tutor, the New South Wales Trustee and Guardian, ought to have put on an affidavit explaining the delay. With respect, I do not accept that submission. The person best placed to explain the delay from the time that the plaintiff obtained legal advice (29 January 2015) through to provision of the explanation (9 November 2015) was Ms Prodanovic, the person who had the day-to-day carriage of the claim against the NRMA and who undertook all of the investigations and inquiries on behalf of the plaintiff.

42. The third basis for submitting that the Statutory Declaration of Ms Prodanovic was not an explanation within the meaning of s73 was that the Court “would not be satisfied that Ms Prodanovic had the requisite authority to so given [sic] that the plaintiff was the subject of a Guardianship Order on 10 November 2015 (which calls into question the plaintiff’s capacity to provide instructions at the relevant times)”.

43. Again, with respect, I do not accept that submission. There is no indication that the plaintiff herself had any knowledge of what steps had been taken on her behalf to bring the claim. Counsel for the defendant accepted, in the course of argument, that there was no issue taken with the adequacy of the explanation up to 29 January 2015, when the plaintiff first sought legal advice. As to matters which occurred thereafter which inform the definition of full and satisfactory under s66, the plaintiff’s solicitor was best placed to provide that evidence based on her own knowledge and belief. Her affidavit demonstrated a very good knowledge of all relevant events during the period in dispute.

44. The fourth basis upon which the insurer sought to avoid the finding that the Statutory Declaration was an explanation under s73 was because in the covering letter, the solicitor sent serving the Statutory Declaration, it indicated that a Statutory Declaration would be provided from the plaintiff in due course and that the insurer was entitled to wait for that explanation before deciding whether to accept or reject the explanation provided in the Statutory Declaration of Ms Prodanovic.

45. I do not accept that submission. The fact that there may have been an intention to provide a Statutory Declaration from the plaintiff as to her understanding for the reason for delay does not detract from the fact that the explanation provided on 9 November 2015 by the solicitor was an explanation within the meaning of s73.

46. If one reads the covering letter in its entirety, it includes the following statement:

Our client is unable to provide an explanation for the delay in the lodgement of her claim form in the form of a statutory declaration at this time. As is apparent from the enclosed statutory declaration, we have encountered a great deal of difficulty in arranging a conference with our client due to her personal circumstances of which you are already well aware.

(Exhibit A, page 288).

47. Accordingly, I do not accept this submission made by the insurer and I confirm the finding above that the explanation provided by Ms Prodanovic in the Statutory Declaration of 9 November 2015 was an explanation within the meaning of s73.

48. In answer to the second question raised with the parties, counsel for the defendant correctly accepts that his client did not reject the explanation within two months of receiving it. That is, on or before 9 January 2016.

49. As for question 3, that is whether the insurer has lost the right to reject the claim on the ground of delay by not rejecting it in time. Counsel for the defendant relied upon an exchange that occurred between the bench and bar on the hearing of the application at [T35]. The Court sought clarification as to whether there were any procedural lapses in terms of giving notices of failures and the like. Counsel for the defendant stated:

Well, I don’t think there are, but I’d be grateful if Mr Semmler could confirm that, because that will certainly narrow issues.

[T35.15].

50. When the question was directed to Mr Semmler QC, he indicated that there was no issue.

51. In its Submissions, the insurer says that the plaintiff expressly conceded that the insurer had not lost its right to reject the claim on the ground of delay, by reason of the answer provided by Mr Semmler QC. Whilst the statement by Mr Semmler may be considered a concession it does not enliven the insurer’s right to reject a late claim under s73. Not only is there no power in the Court to grant leave to reject a claim outside of the two month period but there is no provision for that to be done by consent. Accordingly, the concession made by senior counsel for the plaintiff is of no moment. In any event, by Written Submissions filed for the plaintiff on this question, the concession was withdrawn.

52. Accordingly, I find that the insurer failed to reject the explanation provided by the Statutory Declaration of Ms Prodanovic on 9 November 2015 within two months after receiving it and, accordingly, has lost the right to reject the claim as a late claim on the ground of delay.

53. In the event that I am mistaken as to the previous finding, I would, in any event, find that the explanation provided by the evidence referred to above provides a full and satisfactory explanation for the delay in lodging the PICF. Given the insurer’s concession, one need only examine the period from 29 January 2015 through to the time of providing the explanation to determine whether it is full and satisfactory. In my opinion, the evidence that has been adduced on the application established that the plaintiff has provided a “full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date with providing the explanation” (s66(2)).

54. Further, I find that 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. The subjective matters to which I have had regard in considering the “position of the claimant” include the following:

1. the fact that the plaintiff was incarcerated for part of the relevant period;

2. that upon release from prison, the plaintiff was homeless;

3. that the plaintiff was difficult to contact by reason of being homeless;

4. that the plaintiff suffered from an intellectual disability;

5. that on 10 November 2015, NCAT found that there were sufficient grounds for the appointment of a Financial Manager in respect of the plaintiff’s affairs;

55. I have also had regard to the following description provided in the application to NCAT:

Ms El Hajjar is presently 21 years of age and has been persistently homeless. She is a sex worker and has tested positive for Hepatitis C. She often sleeps on the street when not working. She has a long term history of heroin abuse and prescription medication. Due to her history of family trauma, long term homelessness, drug use and lack of support, she does not have the capacity to engage in education or employment and is reliant upon a Centrelink Disability Support Pension. It is my understanding that 50% of this pension is income managed by Centrelink in order to assist her in meeting her basic needs. The Claimant has a strong history of presenting to hospital in respect of various injuries and conditions, often in a drug induced state. She has been linked to methadone clinics but has been unable to complete the program/s. A recent neuropsychological assessment performed whilst Ms El Hajjar was an inmate at Silverwater Correctional Facility confirmed the presence of a mild intellectual disability.

I believe a guardian should be appointed as Ms El Hajjar is at serious risk of harming herself. She has no close family or friends or support network.

56. Counsel for the defendant was critical of the plaintiff not adducing evidence from the Financial Manager or her tutor, New South Wales Trustee and Guardian. In my opinion, it is highly unlikely that persons in either of those positions could advance the explanation for delay provided by the plaintiff. Counsel for the defendant referred to that as an “absolute fatal flaw in the claimant’s case” [T39.5]. I do not agree. It is difficult to anticipate what meaningful evidence they could have given, given that the tutor itself is a statutory body and the Financial Manager, a person in the employment of the Trustee, who may from time to time assist the plaintiff in the management of her financial affairs. This was the subject of some debate at the hearing of the applications. In my opinion, the failure to adduce evidence from the statutory authority’s employees does not detract from the sufficiency of the explanation provided on behalf of the plaintiff.

57. Accordingly, even if I am mistaken about the s73(4)(b) point then I find that the evidence adduced by or on behalf of the plaintiff satisfies s73(1) in that it is a full and satisfactory explanation for the delay in making the claim.

Second Issue - whether the plaintiff has provided a full and satisfactory explanation for the failure to provide the required particulars

58. Commencing at paragraph 67 of Exhibit A, Ms Prodanovic explains what steps were taken by her after receiving the s85B request. The plaintiff was homeless and generally uncontactable. Ms Prodanovic arranged to see the plaintiff through a contact from the Centrelink office. Doing so was difficult because the contact could never say when the plaintiff would attend the office.

59. A failed attempt was made to see the plaintiff at the Centrelink office on 14 July 2015. A further attempt was made to see the plaintiff on 17 July 2015.

60. The plaintiff’s solicitor was successful in obtaining the plaintiff’s authority to obtain a copy of the Liverpool Hospital notes.

61. It is apparent from Exhibit A that throughout July and August, enquiries were made by the solicitor for the plaintiff as to whether the New South Wales Trustee and Guardian should be appointed to manage the plaintiff’s affairs.

62. During the course of the telephone conversation between the plaintiff and Ms Prodanovic on 24 August 2015, arrangements were made for a conference to take place on 28 August 2015. Unfortunately, the plaintiff did not attend the conference.

63. On 21 September 2015, Ms Prodanovic received a telephone call from somebody at Centrelink informing her that the plaintiff was present at the office and inviting Ms Prodanovic to attend to meet with the plaintiff at that time. Ms Prodanovic left right away but by the time she arrived, the plaintiff had left the office.

58. It was not until 29 September 2015 that the plaintiff returned to the Centrelink office and by way of a telephone conference arranged by a Centrelink employee, Ms Prodanovic was able to obtain instructions as to the further and better particulars sought by the insurer.

59. The explanation provided by Ms Prodanovic up to that point was, in my view, full and satisfactory. It left open, however, an unexplained period between 29 September 2015 when she obtained instructions from the plaintiff and 20 October 2015 when Ms Prodanovic responded to the s85B request.

60. This was raised with senior counsel for the plaintiff [T65] and, over objection, leave was granted for the plaintiff to call Ms Prodanovic to give evidence as to that discrete and relatively short period of time.

61. Ms Prodanovic presented as an impressive witness. In an honest confession, Ms Prodanovic told the Court that she must have overlooked the paragraph in the s85B request which required an answer within three months.

62. Ms Prodanovic also gave evidence about the difficulties she had experienced in obtaining instructions from the plaintiff concerning the claim, due to the plaintiff being homeless and the subject of intellectual disability. In fact, Ms Prodanovic referred to the plaintiff’s file as being “the most demanding” file she has worked on [T270.15].

63. Ms Prodanovic was not cross-examined.

64. Following that evidence, I sought to identify the remaining s85B issue with counsel for the defendant. When asked whether the insurer’s position was altered, counsel indicated that the s85B complaint was removed. My understanding of the insurer’s position at that point was that it maintained that the explanation was not full and satisfactory as it was not provided by the plaintiff and it also maintained its position in relation to the threshold of $115,000.00 in respect of damages of all kinds.

65. For the reasons given above, I am of the opinion that the plaintiff’s solicitor was the best person to provide the full and satisfactory explanation on behalf of her client in respect of the delay in answering the particulars requested on 2 July 2015. I do not accept the submission that an explanation ought to have been provided by the plaintiff, given her circumstances.

66. Accordingly, I find that the claimant has provided a full and satisfactory explanation for the failure to provide the required particulars, within the meaning of s85B(7)(a).

67. That leaves just the remaining, third issue.

Third issue - whether the total damages of all kinds likely to be awarded to the claimant are not less than $115,000.00

74. This requires a prima facie assessment of liability and damages.

75. Dealing first with the question of liability, the plaintiff’s case is advanced on two alternate bases. The first, that the defendant was negligent and the second, that the accident was a blameless accident within the meaning of the Act.

76. In terms of the defendant’s liability, the particulars of negligence are set out in paragraph 8 of the Statement of Claim.

77. The factual basis for the claim in negligence is set out in paragraphs 4 to 6 of the Statement of Claim. That is, that at the time of the accident, the plaintiff was a pedestrian walking along Canterbury Road in Punchbowl, in the State of New South Wales when the defendant was driving a motor vehicle in the same direction. It is alleged that the defendant’s vehicle collided with the plaintiff.

78. In the PICF, the following description appeared:

I was walking along the footpath along Canterbury Road when a vehicle hit my right arm causing me to be flung over and suffered [sic] serious injuries.

(Exhibit A, page 34).

79. In her Statutory Declaration, of 20 January 2017, the plaintiff stated that she was walking to the service station to buy ice cream. She was walking on the footpath and not the road when “I felt something hit me near my right hand and right elbow and I flipped around and fell on the footpath. I assume I was hit with the side mirror of a car” (Exhibit C, page 49).

80. Later in the same Statutory Declaration the plaintiff stated that she was definitely on the footpath and not on the road or crossing the road when she got hit (Exhibit C, page 50).

81. The Crash Summary Details in the Police Report are slightly different. They provide:

About 11.25pm on Wednesday 28th November 2012 a pedestrian has run on to Canterbury Road near the intersection of Warren Avenue, Punchbowl and has made contact with the nearside of a late model silver Holden sedan which was travelling eastbound in lane 1 of 2.

(Exhibit A, page 57).

82. In the more detailed COPS Report relied upon by the defendant the following narrative appears:

About 23.25 hrs the Pedestrian has run out onto Canterbury Road lane 1 of 2 and was jumping up and down, perhaps trying to flag down a motorist. The pedestrian was wearing black leggings and a black top. Vehicle 2 has driven past in lane 1 of 2 at which time the pedestrian has brushed against the side of the vehicle. Vehicle 2 driver has stopped and assisted the pedestrian and an ambulance was called.

Ambulance attended a short time later and ascertained the pedestrian was not suffering any injuries as a result of contact with the vehicle. The pedestrian appeared to be drug affected and admitted to have [sic] used heroin earlier in the day and she was transported to Bankstown Hospital for observation.

The pedestrian has recent drug intelligence and frequents the area for the purpose of prostitution.

(Exhibit 2, page 71).

83. Given the conflicting versions of the accident it is difficult to reach any firm determination on liability. Such a determination is not, however, required at this stage. Liability of the defendant will turn on questions of visibility, distances, perception and reaction times, about which there is no evidence. If it was the case that the plaintiff was jumping up and down on the road for some time prior to the collision occurring then it might be said that the driver ought to have seen her and been aware of her presence so as to take evasive action. If, on the other hand, the plaintiff was walking off the road but close to it, then the driver might be negligent for travelling too close to the edge of the road surface so as to come into contact with a pedestrian.

84. It seems likely that the plaintiff will recover a judgment against the defendant whose liability will arise by reference to fault or deemed fault in accordance with the blameless accident provisions of the Act.

85. It is likely that there will be a reduction on the plaintiff’s damages for contributory negligence. Given the differences in approach to the determination of contributory negligence in a regular action against a defendant in negligence as opposed to a blameless accident, the range of reduction could be considerable (see Davis v Swift [2014] NSWCA 458 (22 December 2014) from [37]). The plaintiff’s best case so far as it affects contributory negligence is that she was off the road. Her worse case is that she ran onto the road and into the path of the defendant’s vehicle.

86. I do not intend to make any assessment or finding of contributory negligence except to acknowledge that, as I understand the evidence presented at this early stage, it is likely that there will be a reduction for same.

87. The next question is as to the quantum of the plaintiff’s claim. In the Statement of Particulars filed 5 February 2016, the plaintiff claims to have suffered injuries as follows:

1. closed head injury;

2. brain injury;

3. injury to the cervical spine being an acute fracture at C5 with disc herniation at C5/6 and C6/7 causing indentation of the interior surface of the dural sac and requiring a C5/6 fusion;

4. displaced oblique fracture of the mid shaft right ulna requiring internal fixation surgery;

5. injury to pelvis requiring procedure to debride an infected left iliac crest wound and application of VAC dressings;

6. injury to lumbar spine.

88. Although the matter is yet to be referred to MAS for determination of whole person impairment, the plaintiff’s claim may comprise the following heads of damage:

1. non-economic loss;

2. past out-of-pocket expenses;

3. future out-of-pocket expenses, comprising medical treatment estimated at $100.00 per week, physiotherapy at $75.00 per consultation and medication at $50.00 per week for the balance of the plaintiff’s life;

4. past domestic assistance – there was no information before me as to what assistance has been provided to the plaintiff since the accident occurred. It would seem that the fact that she was largely homeless may have some bearing upon this in any event. Notwithstanding, the plaintiff has advanced a claim of six hours per week on a gratuitous basis;

5. future domestic assistance – this is claimed at six hours per week at a commercial rate of $40.00 per hour;

6. past economic loss – it is alleged in the Statement of Particulars that the plaintiff is currently receiving a disability pension of approximately $860.00 per fortnight.

It is further claimed that prior to the accident, the plaintiff worked as a sex worker earning on average $500.00 net per day, seven days per week, being $3,500.00 net per week. The claim was formulated as $3,500.00 net per week for the periods whilst hospitalised and $2,000.00 net per week from 1 February 2013 to date;

7. future economic loss – the claim for the future is put upon the basis of average weekly earnings said to be $1,154.80 net per week. It is said that she has suffered a general diminution in her earning capacity and claims damages in the form of a cushion;

8. other heads of damage – the plaintiff has reserved the right to claim damages in respect of special equipment which may be required in the future. She also claims the costs of funds management and the cost of a case manager.

89. The plaintiff relies upon a report by Dr Monica Ling, Rehabilitation Specialist, dated 3 August 2017 (Exhibit B, page 51). As a result of the subject accident, Dr Ling made a number of diagnoses set out in her report (Exhibit B, page 57). Significantly, Dr Ling attributed the need for spinal fusion to the second accident. In terms of the future, Dr Ling expressed the opinion that there will be permanent impairment of the lower back and skin scarring at the right forearm and cervical spine. She said that the plaintiff could develop future cervical spinal post traumatic degenerative changes at the levels adjacent to her C5/6 spinal fusion.

90. In terms of working capacity, Dr Ling said that it was limited to her low back injury.

91. Dr Ling made a number of recommendations in relation to future care and the like. She assessed whole person impairment due to the accident as 20%. If Ling’s opinion is correct then the plaintiff will be entitled to damages for non-economic loss.

92. The defendant sought leave to rely upon a report by Dr Peter Slezak dated 10 July 2017. That became Exhibit 3. His opinion was focussed upon the plaintiff’s life expectancy and it was indicated that a female of her age would have a life expectancy of 65.3 years. Having regard to various factors pertaining to the plaintiff, he assessed her life expectancy at 40 to 45 years. Although this is a significant reduction, in terms of the effect it has upon the assessment of damages, it is likely to be minimal as any impact is deferred for the period of 40 to 45 years.

93. The defendant also sought leave to rely upon a report by Dr John Korber, Radiologist. It became Exhibit 4. Dr Korber examined a number of scans in relation to the plaintiff’s cervical spine and concluded that the original CT scan of 18 June 2012 (pre-accident) was abnormal. He thought that the second accident gave rise to a re-injury of the cervical spine at C5/6 and that the post-accident MRI scan was in keeping with the majority of the injury having been present six weeks earlier. He thought that the majority of the injury leading to the instability occurred in the first accident notwithstanding the fact that the fracture is definitely not visible in the first imaging.

94. Dr Korber’s opinion obviously raises an issue as to causation of the cervical injury and need for a cervical fusion. Whilst I anticipate that will be a live issue in the proceedings, at this stage it is an untested opinion not responded to by an expert of equivalent qualifications in the plaintiff’s camp. It also fails to address the true effect of any finding on causation. That is, whether the spinal fusion would have been required had the second accident not occurred.

95. In order to satisfy the damages threshold under s85B, the Court must be satisfied that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds, are not less than $115,000.00. Given the vast and seemingly serious nature of the injuries said to have been suffered by the plaintiff, the pessimistic opinion of Dr Ling and the plaintiff’s young age, it is likely that any damages awarded would be substantial. Whilst her lifestyle choices may impact upon the value of her claim for economic loss and domestic assistance, the evidence does demonstrate some incapacity which would bear upon both of those heads of damage. Even applying a reduction for contributory negligence, generous to the defendant, it is most probable that the plaintiff’s damages will exceed the threshold. Accordingly, I find that the total damages of all kinds likely to be awarded are not less than $115,000.00.

Disposition and Orders

96. There are two Notices of Motion before the Court. In view of the findings made above, I will make orders separately in respect of both Motions.

97. In relation to the defendant’s Amended Notice of Motion filed on 22 June 2017, I make the following orders:

1. that the defendant’s Notice of Motion be dismissed;

2. that the defendant pay the plaintiff’s costs of that Notice of Motion.

98. In relation to the plaintiff’s Notice of Motion filed 4 August 2017, I make the following orders:

1. that the plaintiff be granted leave pursuant to s73(1) of the Motor Accidents Compensation Act 1999 to make a late claim;

2. that pursuant to s85B(7) of the Motor Accidents Compensation Act 1999 the plaintiff’s claim be reinstated with effect from the date of filing of the Statement of Claim, being 5 February 2016;

3. that the costs of the plaintiff’s Notice of Motion be costs in the cause;

99. In relation to both Notices of Motion:

1. both parties have leave to apply on 14 days’ notice to vary the costs orders above;

2. exhibits are to be returned forthwith.

100. These proceedings and the related proceedings of Hajjar bht New South Wales Trustee and Guardian v AAMI Limited t/a AAMI (2016/38208) are listed for directions before the Judicial Registrar on Thursday 30 November 2017 at 9.30am.

**********

Decision last updated: 23 November 2017