Parker v Nominal Defendant

[2013] NSWDC 15

District Court

New South Wales

Medium Neutral Citation:

Parker v Nominal Defendant [2013] NSWDC 15

Hearing dates:

22/02/2013

Decision date:

05 March 2013

Before:

Levy SC DCJ

Decision:

1.The notice of motion filed by the defendant on 15 October 2012 is dismissed;

2.The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;

3.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - motor vehicle accident - application by Nominal Defendant for dismissal of proceedings for claimed non-compliance with procedural requirements of Motor Accidents Compensation Act 1999, s 34A and s 73 - delayed claim - due inquiry and search

Legislation Cited:

Motor Accidents Compensation Act 1999, s 34A, s 73

Cases Cited:

Blandford v Fox (1944) 45 SR (NSW) 24
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
Figliuzzi v Yonan [2005] NSWCA 290
Nominal Defendant v Meakes [2012] NSWCA 66
Smith v Grant [2006] NSWCA 244
Walker v Howard [2009] NSWCA 408

Category:

Interlocutory applications

Parties:

Alison Parker (Plaintiff/Respondent)
The Nominal Defendant (Defendant/Applicant)

Representation:

Mr K Andrews with Mr AJ Parker (Plaintiff/Respondent)
Mr A Davis (Defendant/Applicant)
Slater & Gordon (Plaintiff/Respondent)
Moray & Agnew (Defendant/Applicant)

File Number(s):

2012/272627

Publication restriction:

None

Judgment

Table of Contents

Notice of Motion	[1] - [4]
Evidence	[5]
Factual background	[6] - [21]
Applicable principles	[22] - [25]
Consideration of the due inquiry and search issue	[26] - [33]
Consideration of plaintiff's explanation for the delay	[34] - [42]
Disposition	[43]
Costs	[44]
Orders	[45]

Notice of motion

1. In these proceedings the plaintiff claims that on 19 September 2009 she sustained injury in a motor vehicle accident due to the negligence of the driver of a motor vehicle which cannot be identified after due inquiry and search. The plaintiff's claim is a late claim, as it was not made within 6 months of the accident.

1. The Nominal Defendant filed the present notice of motion on 15 October 2012, by which it seeks dismissal of the plaintiff's claim, pursuant to s 34A(3) and s 73(5) of the Motor Accidents Compensation Act 1999 ["MAC Act"]

1. The relief sought pursuant to s 34A(3) of the MAC Act is based on an alleged failure of the plaintiff to pursue due inquiry and search, as is required by s 34 of that Act.

1. The relief sought pursuant to s 73(5) of the MAC Act is founded upon an alleged failure on the part of the plaintiff to provide a full and satisfactory explanation for the delay in making her claim.

Evidence

1. In support of the motion, the defendant relied upon the affidavit of Mr Nathan James Kelly, solicitor, sworn on 11 October 2012. The plaintiff relied upon the affidavit of her solicitor, Ms Noura Alameddine, sworn on 3 December 2012, as well as her own affidavit sworn on the same date. The plaintiff was cross-examined upon the content of her affidavit.

Factual Background

1. At the time of the accident the plaintiff was driving her vehicle in Northern Road, Penrith. She was in the course of executing a right turn into Dunheved Road when another vehicle making a similar turn beside her vehicle oversteered during that turn. That event baulked the plaintiff and caused her to take avoiding action and to steer off her intended course. In the course of those events the plaintiff steered her vehicle into collision with the kerbside gutter. Her vehicle then mounted the footpath where it came to a halt.

1. The other vehicle did not stop and it was not identified at the scene by either the plaintiff or other witnesses. The plaintiff gave a statement to an investigating police officer who attended the scene. The plaintiff initially thought that her injuries were temporary and not of a serious nature. An ambulance was not called and the plaintiff did not seek any immediate treatment.

1. At the time of the accident, the plaintiff was a resident of Victoria and held a Victorian driver's licence. She had not had a previous motor vehicle accident. She was visiting NSW when the accident occurred. She was unaware that she could have made a claim. She returned to Victoria the following day. She then sought medical attention at the Geelong Hospital where she remained for some hours before being discharged.

1. Whilst at that hospital she was given some Victorian Transport Accident Commission report forms to complete and was told this was the way a claim should be made for injuries. Subsequently, the triage nurse at the hospital told her that as the accident had occurred in NSW, she could not make a claim.

1. The plaintiff accepted the correctness of that advice and did not pursue the matter further. The plaintiff said, and I accept, that she was a trusting person, and she therefore accepted the statement of the triage nurse on its face as being correct. My impression of the plaintiff was that she is an unsophisticated person who was likely to have accepted such advice in those circumstances.

1. The plaintiff later saw her local doctor on one occasion and he referred her for chiropractic treatment. She could not obtain chiropractic treatment immediately because of a waiting list. The plaintiff's injuries were of a soft tissue nature to her neck, back and hips, with some associated anxiety and stress.

1. The plaintiff returned to Sydney in January 2010 where she then resided with her parents. Following her arrival in Sydney she received extensive chiropractic treatment. Over time, the plaintiff's symptoms gradually worsened. She has continued to receive chiropractic treatment for those symptoms over a prolonged period, with only limited relief.

1. In August 2011, as a result of being questioned by her father as to why she was obtaining frequent chiropractic treatment, she told her father of the connection she believed to exist between her symptoms and the subject motor vehicle accident. It was at that time her father suggested she seek legal advice in relation to her injuries notwithstanding that she had earlier been told she had no right to make a claim for her injuries when she attended the Geelong Hospital.

1. On 10 August 2011, the plaintiff took up her father's suggestion and then made contact with her solicitors, Slater & Gordon. She attended that firm for an appointment on 12 August 2011. On that occasion she was made aware of her rights for making a claim in respect of her injuries and of the need to have lodged a claim within 6 months of the accident in question. I accept that this latter fact had hitherto been outwith her knowledge and experience.

1. Until the plaintiff consulted her present solicitors, the plaintiff believed she was not entitled to make a claim for her injuries. Whilst that view was clearly mistaken, I consider that the plaintiff honestly held that view, based on what the triage nurse had told her at the Geelong Hospital on 20 September 2009.

1. Once the plaintiff had consulted her solicitors, the process of making a claim, which was by then necessarily a late claim, commenced. She left the formalities to her solicitors to attend to on her behalf and she relied upon them for this.

1. The subsequent actions of the plaintiff's solicitors were aimed at gathering the required information in order to pursue a claim on her behalf. This involved the gathering of medical evidence, further interviewing the plaintiff, the preparation of a statement of the plaintiff and the eventual despatch of a claim form to the Nominal Defendant on 13 January 2013.

1. In those events, following some preparatory work undertaken by her solicitors, and with the assistance of her solicitors, the plaintiff signed a personal injury claim form on 8 September 2011 with the intention that it be lodged with the Nominal Defendant forthwith.

1. Unbeknown to the plaintiff, due to a clerical oversight in the office of her solicitor, that claim form was not lodged with the Nominal Defendant until 13 January 2012. The plaintiff said, and I accept, that had she known of the legislative time limits for the lodgement of a claim of this type, she would have complied with those requirements.

1. There was an 11 week delay incurred by the plaintiff's solicitor in despatching the claim form to the Nominal Defendant in order to initiate the claim. The affidavit of the plaintiff's solicitor, Ms Alameddine explained the delay as follows:

"...

3. The plaintiff first consulted this firm on 10 August 2011 by telephone and subsequently attended upon this firm on 12 August 2011.

4. As a result of consulting this firm the plaintiff was advised her claim was late and that various information would need to be obtained in order that we could complete a claim form on her behalf.

5. Accordingly the plaintiff subsequently returned on 8 September 2011 in order that a claim form be completed.

6. Having checked the file it would appear that the file had remained inactive due to an oversight in this office and it was not until I reviewed the file in January 2012 that I became aware that no steps had been taken between September 2011 and when the claim form was eventually served.

7. To the best of my knowledge the plaintiff was not aware of this fact.

8. Due to an administrative oversight the plaintiff's claim form was not forwarded to the respective CTP Insurer until 13 January 2012 when a letter was forwarded to the Nominal Defendant serving the plaintiff's personal injury claim form."

1. The plaintiff's statement of claim was filed on 31 August 2012. The Nominal Defendant filed the present notice of motion on 15 October 2012, by which it seeks a dismissal of the plaintiff's statement of claim on the stated procedural grounds.

Applicable principles

1. On an application by the Nominal Defendant pursuant to s 34A(2) of the MAC Act for dismissal of a claim based upon an assertion that there has been no due inquiry and search, the court must dismiss the proceedings unless satisfied that due inquiry and search has failed to establish the identity of the vehicle in question: s 34A(5) of the MAC Act.

1. A motion for dismissal under s 34A(3) cannot be made if the Nominal Defendant has lost the right to reject the claim on grounds of failure of due inquiry and search: s 34A(4) of the MAC Act.

1. The legislative scheme of the MAC Act provides that the Nominal Defendant loses the right to reject a claim on account of alleged failure of a plaintiff to make due inquiry and search to establish the identity of the vehicle in question. That right is lost if the Nominal Defendant does not, within 2 months after the claim is made, reject the claim for failure of due inquiry and search, or if the Nominal Defendant fails to ask the plaintiff to make such inquiry and search within that time, or if within that 2 month period the Nominal Defendant refuses to accept that there has been due inquiry and search: s 34A(2) of the MAC Act.

1. Where a claimant makes a late claim, it is incumbent on that claimant to provide a full and satisfactory explanation for the delay in bringing the claim: s 73 of the MAC Act.

Consideration of the due inquiry and search issue

1. On the first limb of the Nominal Defendant's application for dismissal of the plaintiff's proceedings, it is both convenient and critical to first determine whether the Nominal Defendant had in fact rejected the plaintiff's claim on account of due inquiry and search, and did so within 2 months of the claim being made: s 34A(2)(e) of the MAC Act.

1. Although the plaintiff's statement of claim was filed on 31 August 2012, there is no evidence as to when the statement of claim was served on the Nominal Defendant. However, the claim date and not the filing date is the material date for the purposes of s 34A(2)(e) of the MAC Act.

1. The plaintiff's claim was made on 23 July 2012, when her solicitor provided the Nominal Defendant with a letter setting out the detail of the plaintiff's attempts at due inquiry and search: Annexure "F" to the affidavit of Mr Kelly. That letter was marked with a receipt stamp indicating it had been received by the Nominal Defendant's CTP insurer on 7 August 2012.

1. On 7 August 2012, the plaintiff's solicitor provided the CTP insurer representing the Nominal Defendant with a statutory declaration from the plaintiff dated 1 August 2012: Annexure "H" to the affidavit of Mr Kelly. The CTP insurer replied to that correspondence on 20 August 2012: Annexure "I" to the affidavit of Mr Kelly. The effect of the reply was to reject the plaintiff's explanation for the delayed claim, asserting that the explanation proffered was neither full nor satisfactory, as was required by s 73 of the MAC Act.

1. Significantly, in the cited correspondence between the parties in the 2 months following the plaintiff's solicitor's letter dated 23 July 2012 (or the receipt of that letter by the Nominal Defendant on 7 August 2012) neither the Nominal Defendant nor the CTP insurer communicated any rejection of the plaintiff's contention that there had been compliance with her obligation to establish due inquiry and search.

1. Accordingly, I find that in the present case the Nominal Defendant has lost the right to seek dismissal of the plaintiff's claim for argued failure to pursue due inquiry and search: s 34A(2) and (4) of the MAC Act. Accordingly, it is therefore not relevant to examine the subsidiary question of whether the plaintiff had made due inquiries to ascertain the identity of the unidentified vehicle.

1. Had I been required to extend the consideration to determine whether the plaintiff (or her solicitor on her behalf) had undertaken due inquiry and search in order to try and establish the identity of the unidentified motor vehicle, I consider that the steps taken by the plaintiff were the due steps required of her in the circumstances: Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375, at 380 - 381 per Dixon CJ, considering Blandford v Fox (1944) 45 SR (NSW) 24; at 244 - 245.

1. The plaintiff had no immediate knowledge of the identity of the vehicle and it was not readily ascertainable by her. Reasonably, she was entitled to assume that the investigating police officer would be in the best position to make inquiries to try and identify the vehicle. At the scene of the accident her own perception of her injuries were that they were very minor in nature and she could not have reasonably been expected to have escalated her own inquiries for formal documentation of the event beyond making a statement to the investigating police. In these circumstances, noting that each case must depend upon its own circumstances, I consider that this case is in the category where the identity of the vehicle in question was not readily ascertainable either at the scene or subsequently: Nominal Defendant v Meakes [2012] NSWCA 66, per Sackville JA at [72].

Consideration of plaintiff's explanation for the delay

1. The remaining question to be determined is whether the plaintiff has provided a full and satisfactory explanation for the delay in bringing her late claim. That question falls to be considered in the light of the following factual circumstances.

1. The essential question is whether, in the context of a relatively minor injury, a reasonable person in the position of the plaintiff would have unquestioningly accepted the advice of the triage nurse at Geelong Hospital to the effect she could not make a claim, and ignored the possibility that her resultant belief that she was not entitled to make a claim, may have been wrong, because a legally qualified person had not been consulted for such advice: Figliuzzi v Yonan [2005] NSWCA 290, per Tobias JA, at [102].

1. I am satisfied that a reasonable person in the position of the plaintiff, being an unsophisticated person inclined to place trust in persons of authority, would have acted similarly to the plaintiff in like circumstances. Consistent with that view, I consider that a reasonable person in the position of the plaintiff would have incurred similar delay as was incurred by the plaintiff in taking steps to obtain legal advice.

1. There are two relevant periods of delay that require explanation. The first period concern the period from the time of injury (including the first 6 months) to the time the plaintiff obtained legal advice. The second period concerns the delay that transpired between the time the plaintiff signed the claim form and the date the claim form was sent to the Nominal Defendant.

1. The plaintiff has provided a statutory declaration dated 1 August 2012 in which she has, over the 47 paragraphs within it, outlined the chronology of relevant events that occurred from the time of the accident until the most recent medical assessment of her injuries.

1. At the scene she appropriately reported the accident. The next day she appropriately attended hospital to have her injuries assessed. She then appropriately sought medical and paramedical advice and treatment.

1. At Geelong Hospital in her dealings with the triage nurse over the transport accident claim form, the plaintiff acquired the belief that she was not entitled to make a claim for her injuries. That belief persisted until her attention was drawn to a need for her to obtain legal advice. In my view, this is a full and satisfactory explanation for the initial period of delay, especially where her injuries and the effects of those injuries were relatively minor at the time, being of a soft tissue nature. I consider that a reasonable person in that position, being trusting of advice from authority and relatively unsophisticated and naïve as to the steps required in order to make a claim, would have accepted the advice she was given at the hospital. This is a sufficiently full and satisfactory explanation for the first period of delay until the time she sought legal advice in August 2011: Walker v Howard [2009] NSWCA 408, per Allsop P at [95].

1. In my view the delay between 10 August 2011, and the signing of the claim form on 8 September 2011 is readily understandable, and is therefore satisfactory. In that period her solicitors needed to make inquiries and preparations in order to initiate the claims process to the point of assisting her with the completion of a claim form. Those few weeks of further delay would have been incurred by a reasonable person in the position of the plaintiff who, had entrusted her affairs to a professional person in order to advance her rights. In my view that explanation is also full and satisfactory, especially when the plaintiff was entitled to rely upon her legal advisors without question: Smith v Grant [2006] NSWCA 244, per Basten JA at [74].

1. In the final period of the incurred delay, administrative oversight within the office of the plaintiff's solicitor resulted in an 11 week delay in lodging the plaintiff's completed claim form. During that period, the plaintiff was not on notice of any further avoidable delay occurring and was entitled to rely on her legal advisors to advance her rights. She did so without question. In my view, in those circumstances, the plaintiff has fully and satisfactorily explained the second period of delay: Walker v Howard [2009] NSWCA 408, per Allsop P at [95].

Disposition

1. The defendant has failed to achieve the relief sought and therefore the defendant's motion must be dismissed.

Costs

1. As the plaintiff has succeeded in having the defendant's motion dismissed, she is entitled to have her costs of the motion paid by the defendant. Those costs are to be paid on the ordinary basis, unless otherwise ordered.

Orders

1. I make the following orders:

(1)   The notice of motion filed by the defendant on 15 October 2012 is dismissed;

(2)   The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered;

(3)   Liberty to apply on 7 days notice if further orders are required.

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Decision last updated: 05 March 2013