Phoebe Orilla v Brian Chown
[2013] NSWDC 226
•22 November 2013
District Court
New South Wales
Medium Neutral Citation: Phoebe Orilla v Brian Chown [2013] NSWDC 226 Hearing dates: 24 October 2013 Decision date: 22 November 2013 Before: Letherbarrow SC DCJ Decision: Leave granted pursuant to s109 of the Motor Accidents Compensation Act, 1999
Catchwords: Full and satisfactory explanation - reasonable person in the position of the claimant - solicitor's conduct - damages of all kinds likely to be awarded - prejudice Legislation Cited: Motor Accidents Compensation Act,1999 s66, s109 Cases Cited: Walker v Howard [2009] NSWCA 408, Lyu v Jeon [2012] NSWCA 446, Russo v Aiello [2003] HCA 53, Smith v Grant [2006] NSWCA 244, Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51, Holt v Wynter [2000] NSWCA 143, Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 314, Sinclair v Darwich [2010] NSWCA 195, Eades v Gunestepe [2012] NSWCA 204 Category: Interlocutory applications Parties: Plaintiff: Phoebe Orilla
Defendant: Brian ChownRepresentation: Plaintiff: Mr Goodridge
Defendant: Mr Ronzani
Plaintiff: Monaco Solicitors
Defendant: Lee and Lyons Lawyers
File Number(s): 2012/255676
Judgment
Introduction
By her notice of motion filed 12 September 2012, the plaintiff seeks to leave pursuant to section 109 of the Motor Accidents Compensation Act, 1999, (MACA) "to commence and continue" proceedings against the defendant in relation to injuries she sustained in an accident which occurred on 17 March 2009.
As the terms of the motion would indicate, the plaintiff commenced proceedings in relation to such accident by filing a statement of claim on 16 August last which has since been amended in ways not relevant to the current motion. In it, the plaintiff pleads that on the abovementioned date at about 5:30pm, she was stationary in a motor vehicle on Hoskins Street at Temora "having just reversed from a parking space and (was) preparing to move off", when her vehicle was struck from behind by the vehicle being driven by the defendant.
The leave sought was opposed by the defendant for whom Mr Ronzani, of counsel, appeared. Mr Goodridge, of counsel, appeared for the plaintiff.
The Nature of the Evidence
The plaintiff relied upon 4 affidavits. An affidavit sworn 5 October 2012 by Mr Stephen Morgan, a solicitor then employed by the plaintiff's current solicitors, Monaco Solicitors, became exhibit A. Two affidavits, affirmed 3 May and 14 August 2013, from Ms Sarah Jane Layton, solicitor, who took over the conduct of the plaintiff's matter after Mr Morgan left the firm, became exhibits B1 and B2 respectively. An affidavit from the plaintiff herself, sworn 30 April 2013, became exhibit C.
In addition, Mr Goodridge tendered the following documents:
(i) A medical report from Dr Ian Barrett, Orthopaedic Surgeon, whom examined the plaintiff on 11 March 2013 at the request of Curwoods Lawyers, the defendant's solicitors in relation to her earlier 2004 motor accident mentioned below (exhibit D).
(ii) Certain progress notes from the practice of the plaintiff's general practitioners relevant to her attendance thereat between 1999 and 2011 (exhibit E).
(iii) A copy of the documents produced on subpoena by Messrs Creaghe Lisle Solicitors of Wagga, who acted for the plaintiff prior to Monaco Solicitors (exhibit F). This subpoena sought all "documents and files relating to the work of Creaghe Lisle Solicitors whilst acting for" the plaintiff. As to these documents, whilst a claim for privilege had been asserted thereon by such solicitors, Mr Goodridge obtained instructions from the plaintiff to waive such claim.
(iv) The original of the plaintiff's motor vehicle accident claim form in relation to the subject accident signed by her on 15 May 2009 (exhibit G).
(v) A letter from the defendant solicitors dated 21 May 2013 requesting certain particulars and the plaintiff's solicitors response of 5 July 2013 (exhibit H).
On behalf of the defendant, a medical report from Dr Breit, Orthopaedic Surgeon, addressed to the defendant's solicitors, dated 30 August 2013 and relating to such doctor's examination of the plaintiff that day, became exhibit 1.
In addition, lengthy written submissions prepared by Mr Ronzani became MFI 1 and a chronology prepared by the plaintiff's solicitors became MFI 2.
The only oral evidence was that of the plaintiff whom was required for cross-examination.
The Issues for Determination
The defendant opposed the granting of leave on several basis. Firstly, it was contended that the plaintiff's explanation for the relevant delay was neither "full" nor "satisfactory" as defined in section 66(2) of MACA and understood within the authorities. Secondly, the defendant argued that that the "presumptive prejudice" which it asserted had been occasioned, meant that a fair trial in all the circumstances could no longer be held. Thirdly, it was argued that the plaintiff could not satisfy the relevant damages threshold limit set out in section 109(3)(b) which was agreed between the parties to be $97,500. This last question also raised issues of liability in relation to the subject accident with the defendant arguing that the plaintiff will either fail in establishing any relevant fault in relation to the subject accident or that the level of her own contributory negligence will be found to be extremely high.
Relevant Post-accident Circumstances - The Plaintiff's Affidavit and MACA Claim Form
After her accident, the plaintiff attended her local general practitioner, Dr Jeri at the Temora Hospital that same day as well as the Temora Police Station to report it. At that time the plaintiff deposed that her "impression" was that to pursue any form of personal injury compensation claim, she needed to have sustained "extremely serious injuries."
At the time of her accident, the plaintiff worked 38 hours per week as the manager and sole employee of Temora Travel, as well as 10 hours per week as a checkout operator at the local Woolworths Supermarket. Whilst in her affidavit the plaintiff suggests she had only 3 days off work from either job, her below-mentioned claim form suggests that she did not return to her travel agency position until she did so part time on 7 April 2009 and that she only returned to her Woolworths job for one day 3 days after her accident before ceasing to work in that position for some time.
Within a few weeks the plaintiff contacted WorkCover to enquire whether she had a "viable" workers compensation claim and was told that she did not because her accident occurred during a break in her journey home although she was also advised that she should investigate making a claim under MACA.
On 9 April 2009, the plaintiff was "made redundant" from the travel agency position whilst still only being able to work part time. As a result she investigated making an unfair dismissal claim.
On 15 May 2009, the plaintiff lodged her own MACA claim form, less than 2 months after the subject accident. In response, she received a letter from NRMA Insurance, dated 4 June 2009, rejecting such claim on the basis that she had not reported it to the police which she in fact had, as evidenced by the relevant part of her claim form and the police report annexed to her affidavit which shows she did so at 8.30pm on the day it occurred. In these circumstances, in May or June 2009 the plaintiff went to see a solicitor in Temora named Graeme Granleese and he advised her that he did not practice in the personal injury area and suggested that she contact a firm in the Wagga area known as Messrs Creaghe Lisle. Prior to doing so, she appeared for herself in her own unfair dismissal suit in late May 2009 in which she was unsuccessful.
On 29 July 2009, the plaintiff met Mr Simon Finch, solicitor, at the Creaghe Lisle offices in Wagga who asked her to provide him with copies of, inter alia, any medical reports in her possession. At this point, it should be noted that the plaintiff had also been involved in a motor vehicle accident in 2004 and a similar section 109 motion in relation to that accident had been listed before me to be heard at the same time as the current motion but shortly before both hearings commenced, I was advised by Mr Goodridge that the substantive claim in relation to the 2004 accident had settled, whereupon terms of settlement in a modest sum were handed up and I made the relevant orders.
I mention that at this point as Mr Finch was also told about this 2004 accident by the plaintiff at their first meeting. As a result, he advised her that she may have a claim for it and he requested she provide him with further information in relation to it as well.
In early August 2009, the plaintiff received a number of documents from Messrs Creaghe Lisle including costs agreements and medical authorities. She deposed that the amount of documentation that she had complete was "voluminous and related to both the 2004 and 2009 accidents" and while she found it confusing she set about "gathering all the information".
In mid-September 2009, the plaintiff's grandmother, to whom she was extremely close, passed away suddenly and she went to Melbourne to organise the funeral as well as to pack up her grandmother's house, pay her bills and to get her affairs in order.
In October 2009, the plaintiff deposes that she "fell into a deep depression" as a result of her grandmother's death and the stress and injuries caused by the subject accident. As a result, her GP referred her to the Temora District Hospital for counselling which she commenced but her psychological condition deteriorated.
In November 2009, her psychological condition improved and she returned to her part-time work Woolworths. By December 2009, her depression again worsened and she and her partner decided to move away from Temora and he approached his employer about obtaining a transfer.
In late February 2010, the plaintiff received a letter dated 25/2/2010 from Mr Finch from Messrs Creaghe Lisle chasing her up as to the provision of various pieces of information that had been requested in the July 2009 conference which seem to relate to her 2005 accident. Such letter also noted that the plaintiff had not returned the "Client History", "Medical Authorities" or the "Costs Agreement" sent to her shortly after such conference. It concludes by stating that:
"We are unaware at this stage whether or not you wish for us to continue to act on your behalf, and if so, we would as that you contact Aaron Thomas of this office with those instructions and the documentation we have previously requested.
If we have not heard from you within 28 days we will assume that you no longer require our services and we will proceed to close this file.
The plaintiff contacted Messrs Creaghe Lisle by telephone in early March 2010 and spoke to Mr Thomas whom was now handling her file. She advised him of her above-mentioned difficulties although she explained that she still wanted to pursue claims. Thereafter, she returned the signed costs agreements and medical authorities in April 2010.
In May 2010, the plaintiff and her partner moved to Berri in South Australia. Thereafter, she "did not hear anything further from Messrs Creaghe Lisle in relation to the 2009 accident for some time."
In early December 2010, she received a letter from Messrs Creaghe Lisle concerning her 2004 accident and advising that the insurer in relation to that accident had "rejected the claim and explanation for delay." She then contacted Mr Thomas whom she described as being not "very helpful in explaining to me the decision the insurer had made....". The plaintiff goes on to depose that after this conversation she "formed the view that there really was no hope in respect of my 2004 accident and I took no further action in relation to that claim."
However, the plaintiff deposes that at this point Messrs Creaghe Lisle "continued to have carriage over my 2009 matter and I believed that they were attending to everything necessary in that time, however at no point did they ask me to attend any medical appointments."
The plaintiff next heard from Messrs Creaghe Lisle on 22 December 2011 "when they wrote to me advising they no longer wished to act on my behalf". The relevant letter is annexure E to the plaintiff's affidavit and its contents are as follows:
"We refer to the above matter and note we have not heard from you for some time.
We regret to inform you that due to our inability to receive instructions from you we no longer act on your behalf in relation to the matter effective immediately. We have notified the solicitor for the insurer that all future correspondence should be forwarded directly to you.
We note we will not be charging you any professional fees for the work we have done in relation to your matter. However, we enclose our tax invoice for disbursements we have incurred on your behalf which we ask you pay.
We note should you want your file to take to another solicitor we will more than happily provide it to you once we receive payment of our account. We would encourage you to find another solicitor as soon as possible as certain limitation periods can apply which prevent you from continuing your claim."
After receiving this letter, the plaintiff deposes that she telephoned Messrs Creaghe Lisle early in 2012 and spoke to Mr Thomas. She states that the following conversation took place:
I said "Why don't you want to act for me anymore? I remained in contact and got information back to you as soon as I could."
He said "Simon Finch has been looking through the file and instructed me to get rid of those files that aren't going anywhere. Therefore I cannot act for you any further."
As a result of this conversation the plaintiff deposes that she then believed that she "had no claim for either my 2004 or 2009 accident and that Mr Thomas did not provide me with any further details about a 3 year limitation period in relation to my claim..." The relevant 3 year limitation period then expired in March 2012.
After her conversation with Mr Thomas in early 2012, the plaintiff says that she did "not do anything further until early May 2012" when she received correspondence from Curwood's Lawyers, whom, as stated above, acted for the Insurer in relation to her 2004 accident. In it they made an offer of settlement. As a consequence, she "decided to seek some further advice." First of all she contacted a "local solicitor in Berri, South Australia who told her to contact a New South Wales solicitor." She responded by contacting her current solicitors by telephone on 15 May 2012. As a result, she met Mr Stephen Morgan from Monaco Solicitors and after completing a costs agreement they commenced to act for her on 5 June 2012.
Relevant Post Accident Circumstances - the Plaintiff's Oral Evidence
Prior to being cross-examined upon her affidavit, the plaintiff gave some short additional evidence in chief. She was asked by Mr Goodrich whether the subject accident had any effect upon her ability to perform her work in the travel agency position to which she answered "no" and that she was, in fact, made redundant. She was then asked if she had not been made redundant could she had continued to do such job. In this respect, the plaintiff answered "yes". Both these answers appeared to surprise Mr Goodrich. I mention this additional evidence as an example of the plaintiff's apparent honesty. In this respect, at no point during her evidence did she appear to be attempting to mislead the court in any way and I do not have any doubts as to her credibility. I should also record at this point, that without wishing to be insulting to the plaintiff, she struck me as a person of limited education. In this regard, it would seem that she was born in the Philippines and came to Australia when she was about 12 years of age.
Much of the plaintiff's cross-examination was taken up with respect to matters going to the issues of liability, contributory negligence and quantum. However, it was also put to her that she "did very little about" prosecuting her claim which she firmly denied and said that she had handed in the "paperwork" requested. It was also put to the plaintiff that Creaghe Lisle "terminated you as a client" which was apparently a reference to their letter of 22 December 2009. The plaintiff agreed with this proposition and then gave the following evidence:
Q. What did you do after that?
A. What did I do after that?
Q. Yes. You had no more solicitors acting for you. What did you do about your case?
A. I just pretty much left it.
Q. And somehow or other you then decided on asking Monaco Solicitors to act for you?
A. Yes, because I needed some more legal advice.
HIS HONOUR
Q. Why did you pretty much leave it?
A. Sorry?
Q. You said you pretty much left your case. You said you pretty much left it.
A. Yep.
Q. Why did you do that?
A. Because Creaghe Lisles wasn't doing anything about the case. There was forms that was asked for me to fill in, but those forms, I couldn't actually fill in myself.
Q. And when you said you agree that they, using Mr Ronzani's words, sacked you, what was your understanding as to why they did that?
A. Well, I did try and get them to explain why.
Q. And what happened?
A. They - Aaron Thomas had told me that he was told by Simon Finch that they had to get rid of the papers, it's not getting nowhere, and that was it.
Relevant Post Accident Circumstances - The Medical Evidence Relating to the Plaintiff's Psychiatric Condition
The plaintiff's general practitioners' practice notes (exhibit E) reveal no psychological or psychiatric problems from their commencement in 1999 up until her subject accident in 2009. The only mention of her 2004 accident is a single entry in March 2005 relating to a "sore neck and pins and needles...". The first entry in relation to her subject accident is on the day it occurred when she complained of right sided neck pain. Upon examination her neck was found to be "swollen, tender." Thereafter, there are numerous entries relating to parasthesia in her right arm and hand as well as continuing neck pain. On 21 May 2009, complaints of anxiety and palpitations are recorded in circumstances where her abovementioned unfair dismissal claim was listed the next day. The relevant note goes on to reveal symptoms of poor sleep, irrational fear and early morning wakening. Under "Reason for Contact" an "Anxiety Disorder" and "Cervical Radiculopathy" are mentioned.
Thereafter, the notes contain further physical complaints of a similar nature. The entry of 10 October 2009 mentions that the plaintiff was very anxious and teary following the death of grandmother in Melbourne. Again, mention of poor sleep and early morning wakening is made. A depressed mood is also recorded. In the entry of 19 March 2010, thoughts of suicide are mentioned "but not now" as the plaintiff had apparently just found out that she was pregnant with her third child. Whilst the subject car accident is mentioned, so are the recent deaths of the plaintiff's "pop and grandmother..." On this occasion, the doctor created a "Mental Health Care Plan".
The only report from a mental health professional before me is that from the well known and highly experienced Forensic Psychiatrist Dr Thomas Oldtree Clark, dated 13 March last, which is annexure 'M' to exhibit B. It relates to his examination of the plaintiff that day. In it, Dr Clark takes a history of both accidents noting that the plaintiff "considered herself to have completely recovered" from the 2004 accident by the time of the subject 2009 accident. As a result of the latter accident, he takes a history of "many characteristic symptoms of post-traumatic stress reaction", including recurrent flashbacks, disturbed sleep, and a "nonexistent" social life. He also records suicidal thoughts, depression, hyperventilating and social withdrawal "present ever since the incident...".
Consequent upon his examination, Dr Clark reached a diagnosis of a major depressive disorder which was part of the plaintiff's "intractable" post traumatic stress disorder. As to treatment, Dr Clark explained that the plaintiff required at least 9 months attendance upon a treating psychiatrist coupled with a trial of medication. As to causation, Dr Clark was of the view that the "second accident was more significant than the first accident." His prognosis was "uncertain".
It is clear from his detailed report that Dr Clark was of the view that the plaintiff has been significantly psychiatrically impaired since her subject 2009 accident. He details at some length "from the Statutory Guide to Psychiatric Impairment" the list of "Descriptors" applicable to the plaintiff. These reveal numerous deficits in the plaintiff's ability to function across a wide range of areas including inabilities to live independently without regular support and to travel away from her residence without a support person. It is also clear that the plaintiff suffers from a lack of motivation and has difficult in concentrating.
Relevant Post Accident Circumstances - The Documents Produced by Creaghe Lisle
The documents produced from Creaghe Lisle in answer to a subpoena from the defendant seeking all "documents and files relevant to the plaintiff" are not easy to follow.
The first file note is dated 30 July 2009 and details the initial conference that Mr Finch had with the plaintiff the day before. It is plain that she spoke to Mr Morgan about both her accidents after which he requested her to provide various pieces of information.
The next file note is dated 12 August 2009 and refers to a long conversation that apparently Mr Finch had with the plaintiff "in relation to the documentation and everything that I have asked her to get." It concludes with a note that the plaintiff had been asked "to keep chasing up the reports and get them to me ASAP".
The next file note is dated 2 December 2009 and refers to a telephone conversation had with plaintiff that day in which the unknown author "apologised for taking so long to get back to her" and advised "they were in the process of getting some stuff together to get to (a barrister) and that I would be in touch some time after that."
The next file note is dated 20 February 2010 and would appear to have been made by Mr Finch and addressed to Mr Thomas. In it Mr Finch instructs Mr Thomas to have "a look at this file, it is a little bit tricky, I don't know if this woman wants to continue but if she does I have asked her to contact you. I will be working with you on it and...maybe... we need to brief (a barrister) once we receive the information if she does in fact give it to us."
The next file note is dated 16 March 2010 which records a telephone conversation between Mr Thomas and the plaintiff in which she told him "that she had received a letter from Simon stating that she hasn't provided any documentation" and "that she had provided everything she has including the claim form and medical docs". This apparently prompted Mr Thomas to tell her that he would "look at the file and get back to her".
Later that day the same file note records the conversation Mr Thomas had with the plaintiff when he phoned her back in which he "explained that we have received the documentation regarding the 2009 accident however we still need the information relation of the 2005 accident before we can progress the matter." He also advised her that "we needed a signed costs agreement and signed medical authorities to progress the matter". The signed authorities are contained amongst the documents produced and are dated on an unknown date in 2010. Mr Thomas goes on to record that he told the plaintiff that "when we receive this documentation we can think about instructing a barrister in the matter."
The file then details a telephone attendance on the plaintiff on 9 April 2010 in which she was advised that Creaghe Lisle "were sending brief to a barrister and would let her know what the barrister thinks."
Next, the file records that the plaintiff phoned Mr Thomas on 23 April 2010 wanting to know "where the matter was up to and whether a barrister had looked at the matter." She was told that the barrister " is in court the next couple of weeks.". He also asked the plaintiff to come into the office to again witness the claim form in relation to the earlier accident which had apparently not been done correctly. The file establishes that she did so on 30 April 2010 when she was also told "that after we receive advice from barrister we will have a clearer picture as to where we are going...".
It would seem that the next thing to happen was the plaintiff signed a statutory declaration in relation to her 2004 accident "to explain the delay". A copy of some is not included in the file nor was one tendered in evidence.
Thereafter, there would appear to have been some discussions concerning problems with the 2004 accident claim together with a note that the plaintiff had by 8 June 2010 returned to her work at Woolworths "as a checkout operator" and that she was "coping OK but is still taking medication."
The file reveals that the plaintiff kept in contact with Mr Thomas in August and September 2010 and provided him with further material in October 2010. In November 2010, she telephoned Mr Thomas wanting "to know where the claim is up to" and was advised that they were "awaiting response" from, apparently, the insurer in relation to the 2004 accident.
A file note in relation to a call made by the plaintiff to Mr Thomas in December 2010 after she had received his letter apparently indicating that the insurer for the 2004 accident had "denied her explanation for delay", records her as wanting to know "what we were going to do next". Mr Thomas thereupon explained that he had shown "all the material to Simon and he was not optimistic as to her chances of succeeding with her claim and indicated that we may be able to get advice from a Barrister in relation to the matter however that (sic) Phoebe will need to deposit $2,000 into our trust account for the Barrister's fees." Such file note goes on to record the plaintiff "also wanted to know how her claim was going for the accident that occurred in 2009" and that she was advised by Mr Thomas" that the claim was rejected prior to even coming to our office on the basis that she did not report the matter to Police and has not provided a sufficient explanation." As mentioned above, the plaintiff had reported her 2009 accident to the police the day it occurred. Such file note goes on to record that the plaintiff indicated that due to her current financial difficulties she would not be able to "afford a Barrister" which prompted a response that "she may be able to contact another law firm who would be willing to seek a barrister's advice for free and in the event that she does then she will have to pay disbursements to transfer file". The file note then records the plaintiff "would prefer to keep the file with us" and that "she would try and see if she can get some money together to pay for the barrister."
The next thing of relevance is a note that a representative of the insurer in relation to the 2004 accident phoned Mr Thomas on 16 February 2011 trying to get in contact with the plaintiff's partner who was apparently the party allegedly at fault in same for the purpose of taking a statement from him. The note suggests that this representative indicated that if the plaintiff cooperated it may be of some benefit to her claim. It would seem that the plaintiff complied in supplying her partner's telephone number to Creaghe Lisle that same day.
On 18 April 2011 the plaintiff spoke to someone from Creaghe Lisle and advised that the insurer had obtained a statement from her partner which she would fax through. The relevant note indicates that the author "will chase insurer and see what is happening."
The file then indicates that in May 2011, Mr Thomas spoke to the plaintiff and explained that the insurer in relation to the 2004 accident is "standing by their position of rejecting our claim" but nevertheless invited the plaintiff to make "a heavily reduced" offer. Mr Thomas asked the plaintiff if "she could put together some sort of document which outlines all the current disabilities she suffers as a result of her injuries, the financial losses she has sustained as a result of her injuries including economic loss, out of pocket expenses etc", apparently with a view to preparing such an offer.
That next file note evidences a telephone call made by Mr Thomas to the plaintiff on 12 September 2011 in which the plaintiff advised him that "she hasn't got back to me for some months as she is currently undergoing some medical treatment and the doctors possibly may have identified another injury that is the result of the accidents." Such note goes on to record that Mr Thomas "explained that it is very important that she has reached maximum medical improvement or at least is aware of all the medical conditions she suffers as a result of the accident prior to attempting to settle the matter." It concludes be stating that the plaintiff will now answer request for particulars..... (by) an email by the end of the week"
The next file note is an inter-office memo dated 14 February 2012 from Mr Thomas to the "Filing Clerk" instructing such person that when "you put file away can you please mark in capitals do not release file until account paid in capitals on the front of file."
On the 23 February 2012, the file reveals that a conversation between an unknown person and the plaintiff took place that day in which the plaintiff advised that she "did not receive our ceasing to act letter" of 22 December 2011. This is contrary to her own affidavit wherein she states that she did receive it. In response, the file note reveals that she was advised that "we stopped as she wasn't responding to our requests." Such note goes on to report that the plaintiff "asked if she had a claim" and that she was told "she might and she should find another solicitor" and once "she pays our account we will release the file". It concludes with a statement that the author would "e-mail the ceasing to act correspondence to her". This seems to have occurred as there is a copy of an e-mail dated that day on the file apparently attaching a copy of the ceasing to act correspondence. It goes on to advise the plaintiff that "you still might have a potential claim and encourage you to seek advice from another solicitor."
As already mentioned, the relevant 3 year limitation period then expired a few weeks later.
Thereafter, the file discloses a further conversation between the plaintiff and an unknown person at Creaghe Lisle which took place on 30 April 2012 in which she advised that she did not receive the above-mentioned e-mail. It also records that she "wanted to know if she had a claim" and that she was told "I couldn't answer that as there are hurdles related to the matter (ie not reported to police) that need to be overcome. It depends if you want to spend some money to investigate the matter further." Such note goes on to record that she was "again" advised "to get a solicitor and I will send the file to them so they can give her advice."
The next thing of relevance contained on the file is a record of the plaintiff's instructions on the 17 May 2012 to send the file to her current solicitors which was done that day.
Relevant Post Accident Circumstances - the Plaintiff's Current Solicitors
The relevant affidavit material discloses that the plaintiff first instructed her current solicitors, Monaco Solicitors, in mid May 2012. By this time the three-year period for commencing proceedings had already run out a few months before.
Thereafter, Monaco Solicitors acted promptly, obtaining a copy of the Creaghe Lisle's file, such as it was, and communicating with the defendant's third-party insurers who reacted by sending a CARS exemption application to the motor accidents authority in early July 2012. In consequence, CARS exempted the claim via its certificate dated 2 August 2012 on the basis of a section 81 Notice denying any liability the insurer had issued on 30 June 2009. A copy of such a notice was not contained within Creaghe Lisle file. I mention this because if Creaghe Lisle had obtained a copy of it and appreciated its significance, an application for an exemption of the plaintiff's claim from the CARS process could have been made in mid 2009 which, as is the usual practice, would automatically have been granted thereby enabling the plaintiff to commence proceedings well within time.
In any event, consequent upon the exemption eventually sought and granted, the plaintiff's current solicitors filed a statement of claim on 16 August 2012, the subject motion on 12 September 2012 and the plaintiff's affidavit on 3 May 2013.
The Law
Section 109 of MACA 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."
In relation to the meaning of a full and satisfactory explanation regard must be had to s 66(2) which provides as follows:
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.
The construction of sections 66 and 109 of MACA fell for consideration by a bench of five in the Court of Appeal in Walker v Howard [2009] NSWCA 408. The court's decision therein resolved a number of conflicts in the authorities up until that point and established a number of propositions including the following:
(1) The two sentences of s 66(2) should be read together as a composite whole intended to give content to the notion of a full and satisfactory explanation;
(2) The claimant to provide the requisite explanation, must address acts and omissions relevant to the delay "from the date of the accident until the date of providing the explanation";
(3) These attributes of the "full and satisfactory explanation" in the first sentence of s 66(2) did not mean that the word "claimant" is any broader than its defined meaning. The claimant is responsible for providing the explanation. That the explanation should cover the conduct of agents (such as a solicitor) does not broaden the meaning of a "claimant" in s 66(2) to "the person who makes" or is entitled to make the claim "and any person acting or purporting to act on his or her behalf". No warrant appears in the text or structure of the MACA Act or these provisions for this interpretation;
(4) The meaning of "full" in s 66(2) is to be understood in the context of the purpose of the provision and the explanation: to enable the court to evaluate the reasons for the delay. Thus all relevant information to that end is required;
(5) The test of satisfactoriness in the second sentence of s 66(2) is the operative standard; that is, it is not really necessary, but it is sufficient;
(6) The "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. Such objective assessment may be affected by how others have acted and who those others are;
(7) The provision does not call for perfection or for the recounting of every moment that has elapsed. The section requires the explanation for the delay from the date of the accident.
More recently in Lyu v Jeon [2012] NSWCA 446, Meagher JA with whom Macfarlan JA and Davies J agreed, re-affirmed at [24] that "what will be constitute justifiable delay on the part of a reasonable person... is to be considered in the light of the legislative purposes of the MAC Act" and referred to statements made by several members of the High Court some years before in Russo v Aiello [2003] HCA 53. In addition, His Honour stated that:
Those purposes include encouraging the early investigation, assessment and resolution of claims so as to advance the interests of claimants in having prompt treatment and rehabilitation, and in having the prompt payment of lost earnings; and so as to advance the interests of insurers in more accurately predicting claims frequency and formulating premiums. The Act seeks to achieve these objects by the imposition on both claimants and insurers of time limits and obligations to act expeditiously: see also Walker v Howard per Allsop P at [90].
The relevance of a solicitor's conduct in applications of this nature was also dealt with by the Court of Appeal in Smith v Grant [2006] NSWCA 244. In that case Basten JA, with whom Handley JA and McColl JA agreed, at [32] held that the explanation necessary depends upon the perspective of the claimant not his or her solicitor. As His Honour put it:
What is relevant is the explanation given by the solicitor to the claimant or, in the absence of any explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation.
Accordingly, if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings: see also Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51.
The Plaintiff's Explanation
It is clear that the period for which a full and satisfactory explanation must be given is that from the time of the accident up until the provision of such explanation. In the current matter, this period is from 17 March 2009 until the date that the plaintiff filed her affidavit (exhibit C) which was on 3 May 2013. This is a period of a little over 4 years.
In my view, the period from the accident up until the plaintiff instructed Creaghe Lisle approximately 4 months later in July 2009 is fully and satisfactorily explained as defined (a matter conceded by Mr Ronzani) as is the period from when her current solicitors were instructed in May 2012 up until 3 May 2013. The conduct of Monaco Solicitors in this period as set out in the affidavit material was not unreasonable and, more importantly, would not "induce a reasonable person in the position of the claimant to seek an explanation". The real period of concern is that commencing from when the plaintiff instructed Creaghe Lisle up until the time she instructed her current solicitors which is a period of a little under 3 years.
Precisely what occurred during the period that Creaghe Lisle acted for the plaintiff is very difficult to determine on the evidence. I have done my best to piece is together.
Nevertheless, it is clear that Creaghe Lisle achieved very little during the period that they acted for the plaintiff. They apparently never became aware that the defendant's insurer has issued a s81 Notice in relation to the plaintiff's second accident dated 30 June 2009 or if they did, what it meant procedurally. As mentioned above, this would have enabled them to quickly obtain an exemption from CARS and commence proceedings. They also never managed to obtain any medical evidence except for what the plaintiff may have given them. In fact, it is quite difficult to determine what progress, if any, they made with the plaintiff's claim in the 2.5 years they acted for her. Whilst the plaintiff may have not replied to their requests from time to time, a fact I largely put down to her psychiatric condition, an examination of Creaghe Lisle's file, such as it is, leads one to the conclusion that unless the plaintiff did most of the work in obtaining evidence, they were largely disinterested, except for eventually requesting her to pay a sizeable advance which she could not afford. The inter office description of her claims as "quite tricky" overcomplicates them greatly and, in my view, shows that Creaghe Lisle simply did not understand how to properly prepare and run a claim under MACA. They also wrongly believed that the plaintiff's subject accident had not been reported to the police when, in fact, it had and described this as a "hurdle" to the plaintiff. In this respect, they apparently did not even seek to obtain the relevant police report or check why it was said not to exist. Overall, their conduct of the plaintiff's claims leaves a lot to be desired. It is also clear from the file that the plaintiff contacted Creaghe Lisle herself on a number of occasions enquiring as to the progress of her matter and supplied them with various documents and other information requested as well as generally keeping in contact with them throughout the majority of the period they acted for her.
From the plaintiff's perspective, it is clear from the evidence that she had little or no idea about the requirements under MACA. Further, she developed a very significant psychiatric illness consequent upon her subject accident that became chronic. Whatever the parameters of the phrase "a reasonable person in the position of the claimant" are, in my view, they include the effects of a psychiatric condition caused by the relevant motor vehicle accident as well as a claimant's social background and education.
I also accept that the plaintiff believed Creaghe Lisle were preparing her claim at least up until late 2011 or early 2012 when they decided not to act for her anymore. Further, the only mention of the plaintiff being informed about any limitation period was in the letter of 22 December 2011 which did not inform her that such period would lapse in a few months. Her delay thereafter in instructing her current solicitors was, in my view, in the circumstances reasonable particularly in light of what she was apparently told about the "hurdles" confronting her claim and continuing psychiatric condition.
Whilst I have not found the determination of the question of whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay an easy matter in this case, when the plaintiff's significant long term psychiatric condition, background and level of education are taken into account in circumstances where her prior solicitors', in my view, failed in their duty to properly advise her and progress her claim, I have come to the conclusion that this question should be answered in the affirmative.
Accordingly, I find that the plaintiff's explanation for the delay in commencing her subject proceedings is full and satisfactory as defined in s66(2) of MACA and as understood in the authorities.
I will now turn to the issues arising under s109(3)(b) and then to the question of prejudice.
Damages Threshold - s109(3)(b)
As to the issue of liability, Mr Ronzani in his written submissions argued "the most likely decision" in any hearing would be a verdict for the defendant and that it was therefore "futile to permit these proceedings to continue."
On the other hand, Mr Goodrich argued that on the evidence the plaintiff may in fact not only win the proceedings but do so in circumstances where a court would not find that the defendant has established any degree of contributory negligence.
The meaning of the word "likely" within section 109(3)(b) has been considered by the Court of Appeal on a number of occasions. In Sinclair v Darwich [2010] NSWCA 195 it was held at [36] that this word does not mean "more likely than not" but rather that there is a "real chance" or a "real prospect" that the relevant damages threshold will be exceeded. A similar view was taken in Eades v Gunestepe [2012] NSWCA 204. In that case, Hoeben JA at [36] stated that "the simple meaning of the word "likely" in the context of this Act is that there is a "real chance" or a "real prospect" or that such may well be the situation." His Honour at [37] went on to state that the "structure of the Act...is to assume that the plaintiff will succeed however the court has to assess whether there is a real chance of the verdict exceeding the barrier after considering the reduction for contributory negligence." His Honour also determined that despite the usual general law requirement that contributory negligence is to be raised and proven by the defendant, it is the plaintiff who bears the onus of establishing the "likely" level of contributory negligence.
In the current matter, at paragraph 4 of her affidavit the plaintiff described the accident occurring as follows:
The accident on 17 March 2009 occurred at approximately 5.30pm. My car was parked in the main street of Temora in a 45-degree angle parking spot. I gad been at work that day and done some shopping afterwards. I went back to my car and backed out from the parking spot onto the roadway. I had my right hand on the steering wheel and my left hand on the gear stick changing from reverse to drive when all of a sudden another car struck me from behind.
In cross-examination the plaintiff agreed that she told Mr Morgan that "she had reversed out of a 45-degree angle parking space in Hoskins Street and was in the process of changing gears to move forward - that is, she was in the middle of the carriageway - when she was struck from behind."
On the basis of this statement, it was put to the plaintiff that she at no point told Mr Morgan that she looked before she reversed and she agreed that this was probably the case but went on to state that she "would have told him I looked first before reversing."
She was then taken to her personal injury claim form in which she wrote, inter alia:
"I was reversing back. I went out and in again three times, even looked at a shopfront window, looked again, looked at a pedestrian crossing which I was parked only four car spaces from it. Checked again and reversed. When I was reversing I was struck on the back of my car a ute.... I told him "I didn't see you." His answer was "I thought you were going to stop!"...... I do believe that I was already on the road when we collided and that he was going too fast for me not to see him..."
In re-examination she gave the following evidence:
Q. Madam, you mentioned about going, I think, in and out, or words to that effect, out of this parking spot three times. Can you just explain why you were going in and out of this parking spot?
A. Just making sure that it is actually safe for me to reverse back.
Q. So that we can understand step by step, how far were you going in or out of this spot to make sure it was safe?
A. Just enough space for me to actually see the oncoming traffic.
Q. And you did that on each occasion, did you?
A. I do it all the time, because of my height.
HIS HONOUR
Q. How tall are you?
A. Sorry?
Q. How tall are you?
A. I'm not even 5 foot.
GOODRIDGE
Q. And you mentioned looking at a shop window. Was that in addition to checking or was that instead of checking directly with your own eyes down the road without a reflection?
A. I looked - I turned my whole body back, my neck, to look, the oncoming traffic. Then that's when I went in and out.
HIS HONOUR
Q. Why do you go in after you come out?
A. Sorry?
Q. Why do you go back in after you've come out?
A. Because obviously there's actually oncoming traffic coming.
Q. So you reversed out, saw some traffic?
A. Yep.
Q. And, to get out of the way, went back in again?
A. Yep.
Q. And then you reversed out and the same thing happened two or three times?
A. Yes. As stated, there is actually a pedestrian crossing where the accident occurred.
On the basis of this evidence, whilst it is quite possible that the plaintiff may lose her claim entirely, I do not consider it to be futile. However, even if the defendant after seeing the plaintiff's vehicle reversing decided not to brake as he thought she was going to stop, which I would regard as a breach of duty, the plaintiff's above mentioned method of reversing out of her parking spot far enough to allow her to see if there were any approaching vehicles was fraught with danger. In my view the lowest level of contributory negligence established by the plaintiff as being "likely" as defined above is 60%.
Accordingly, it would seem to me that in these circumstances to satisfy the provisions of section 109(3)(b), the plaintiff must establish she has a "real chance" or a "real prospect" that her total damages will be assessed at an amount which after a 60% reduction for contributory negligence results in a figure of $97,500. Such figure is $243,750.00.
As to the quantification of the plaintiff's "likely" damages, she relies upon, inter alia, the assessment made by her present solicitor, Ms Layton, as contained in her affidavit of 3 May last (exhibit B1). In my view, such estimate is an extremely high one and even includes a future out-of-pocket entitlement of well over $300,000. I regard it as of little assistance.
Whilst the plaintiff does not yet have a binding assessment under MAS entitling her to non-economic loss, I note that in his report of 13 March 2013, Dr Clark assesses her relevant WPI in relation to her psychiatric/psychological injuries flowing from the subject accident at 19%. This assessment clearly breaks the non economic loss threshold of 10%. The only WPI assessment in relation to the plaintiff's physical injury from the subject 2009 accident is that of Dr Reid (exhibit 1) which he assesses at 8%, below the relevant 10% threshold. I note that physical and psychiatric/psychological WPI cannot be added together to achieve a breaking of such threshold. Nevertheless, if the plaintiff's psychiatric/psychological assessment at MAS does break it, which on the unchallenged assessment of Dr Clark, is highly probable, the plaintiff's physical injuries can be taken into account in the common law type assessment of her non economic loss entitlement. Such an assessment has, in my view, a "real chance" of resulting in a figure of $150,000.00 to $200,000.00 sum for non economic loss.
As to economic loss, Dr Barrett, orthopedic surgeon, in exhibit D finds that as a result of the soft tissue cervical injury the plaintiff received in the subject 2009 accident she "does appear to be partially unfit for work" but "would be capable working as a travel agent without restriction". He also finds that she would be "capable working as a checkout operator however she is unfit for work which involves repeatedly bending will work in cramped spaces."
There is also a medical report from Dr Davis of the 12 March last annexed to exhibit B1 in which he opines that as a result of the subject 2009 accident the plaintiff "will not be capable of returning to work as a checkout operator at Woolworths and would only be capable of working within restrictions with the opportunity to change postures as required for comfort."
From a psychiatric perspective, Dr Clark found that the plaintiff was "moderately injured" under the relevant "Descriptor" which is defined to mean that she cannot "work at all in the same position as previously" and that she can "perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different, e.g. less stressful".
The plaintiff's 2009 notice of assessment reveals a net income of approximately $625 per week. Her 2010 tax records reveal a significant drop in her income. The latest notice of assessment is for the 2011 year in which she earned in her position as a shop assistant with Woolworths a little over $11,000.00 net including a tax refund. In her affidavit, the plaintiff deposes that she has not worked since September 2010 when she "ceased work due to a contribution of my injuries and the birth of my youngest child" but also that she has "ongoing restrictions in my capacity to work due to my injuries." It is not explained in the evidence how, if the plaintiff ceased work in September 2010, she had earned the above mentioned sum in approximately the first 3 months of that financial year.
Whilst it is very difficult to make an assessment of the plaintiff's "likely" amount for past and future economic loss flowing from the 2009 accident, based on the medical evidence, I find that she has a "real chance" of also achieving a six figure sum for same. She is currently approaching 38 years of age and has another potential 29 years left in the workforce. A loss of just $150npw on the relevant 5% tables (multiplier 809.6) discounted by 15% for contingency produces a figure of some $103,000.00. In making this finding, I also accept that her economic loss could be assessed at a much lesser figure.
On the basis of all this material, whilst there would undoubtedly be a considerable dispute as to the plaintiff's damages at any hearing, she would nevertheless, in my view, seem to have a "real chance" or "real prospect" of exceeding the relevant figure of $243,750.00. In reaching this conclusion I have also not had regard to any claim for, inter alia, domestic assistance.
Prejudice
Mr Ronzani submitted that a fair trial could no longer be held and in this regard relied upon "presumptive" prejudice said to arise as a result of the plaintiff's delay. The defendant bears the evidential onus to raise the issue of prejudice but once raised it is for the plaintiff to demonstrate that a fair trial can still occur: Holt v Wynter [2000] NSWCA 143. It has also been held that where there is no significant prejudice to a potential defendant, there is no reason why the discretion to extend time should not be exercised in favour of the applicant under s109: Sauer v Allianz Australia Insurance Ltd [2006] NSWCA 314.
Despite Mr Ronzani's submission, I am of the view that a fair trial can still be held. The police records are apparently available and there is no suggestion that any witnesses are unavailable or that relevant material or records have gone missing. Further, the plaintiff's claim was commenced less than 6 months after the 3 year period lapsed in circumstances where the defendant's insurer had notice of the claim less than 2 months after the subject accident.
Determination
Accordingly, leave is granted pursuant to s109 of the Motor Accidents Compensation Act, 1999.
I will now hear the parties as to costs.
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Decision last updated: 25 November 2013
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