Salinger and Booth v Estate Booth

[2006] NSWDC 100

CITATION:	Salinger & Booth v Estate Booth [2006] NSWDC 100
HEARING DATE(S):	17 November 2006
JUDGMENT DATE:	22 November 2006
JUDGMENT OF:	Sidis DCJ
DECISION:	Application dismissed
CATCHWORDS:	Dismissal s 73(3)(c) - Full and satisfactory explanation
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
PARTIES:	Kate Salinger Mallory Damian Booth bht Kate Salinger v Estate of the late James Leigh Booth
FILE NUMBER(S):	Newcastle 379 of 2006
COUNSEL:	Plaintiff C Hart Defendant P Cummings
SOLICITORS:	Plaintiff Burgess Foat Defendant Moray & Agnew

JUDGMENT
HER HONOUR

1 Kathleen Salinger has commenced proceedings under the Motor Accidents Compensation Act 1999 on behalf of herself and her son Mallory.

2 They claim nervous shock arising out of the deaths on the 1 June 2003 of Ms Salinger’s husband, James Booth, and her daughter of a prior relationship, Samantha. They died when Mr Booth drove the vehicle in which Samantha was the only passenger at speed into a rock wall on the F3 Freeway. Immediately prior to their deaths, Samantha had been speaking to Ms Salinger by telephone. She had confirmed information that Ms Salinger had received earlier that day to the effect that she had been sexually assaulted by Mr Booth.

3 Later that day Mr Booth’s mother told Ms Salinger that Mr Booth had himself been sexually abused by his stepfather in activity in which his mother had been involved.

4 Thus 1 June 2003 was a day of considerable trauma for Ms Salinger.

5 A statement of claim was filed on 11 August 2006. The defence of 6 September 2006 admitted breach of the duty of care but claimed that there had not been a full and satisfactory explanation of the delay in giving notice of the claim. The claim was forwarded to the insurer on 22 August 2005. An application was filed by the defendant on 28 September 2006 for orders dismissing the proceedings.

6 The effects of the accident on Ms Salinger, her two remaining children and other members of her family were profound. One of the results was that her mother and sisters were unable to continue to support her in caring for her two young children and for Kianni Johanson for whom at that time she was providing foster care. Kianni was Mr Booth’s two year old niece.

7 She considered that it would be in Kianni’s best interests to arrange an alternative foster placement.

8 Between 1 June 2003 and 22 August 2005 Ms Salinger was involved in a number of claims and litigious processes. They were:

1. Claims relating to the estate of her grandfather, which had already been commenced.

2. Claims relating to the estate of Mr Booth.

3. Family Court proceedings brought by Mr Booth’s mother for access to Ms Salinger’s two children, which were concluded in October 2005.

4. The coronial inquest into the deaths of Mr Booth and Samantha, which concluded in April 2005.

5. An application to the Childrens Court for rescission of the Care Order in respect of Kianni. In an affidavit sworn in support of this application on 5 October 2004, Ms Salinger stated at paragraph 14:

…I am finding the effort of attending to the day-to-day needs of the three children in my care and dealing with the Department concerning contact exhausting. I feel I no longer have the strength to manage the needs of the three children in all the circumstances.

9 Out of concern for Kianni’s welfare, the transfer to an alternative placement was undertaken gradually.

10 Notices of claim by Ms Salinger and Mallory were lodged on 12 August 2005, more than two years after the date of the accident. They were lodged after they had sought compensation from the Victims Compensation Tribunal. These claims were rejected on the basis that their rights to compensation should be dealt with under the Motor Accidents Compensation Act 1999.

11 The evidence before this court on the hearing of the application on 17 November 2006 included:

1. The notices of claim forwarded to the insurer on 22 August 2005. Accompanying the notices was a submission prepared by Ms Salinger’s solicitor which set out the circumstances in which the claim had arisen, provided copies of documents, which had been in evidence before the coroner, made reference to the Family Court proceedings, made reference to the sexual abuse of Samantha and Mr Booth, and made reference to the exceptional stress and strain which these events had placed upon Ms Salinger. The insurer was also informed that Ms Salinger and her remaining children had received psychological counselling and psychiatric treatment, and that Ms Salinger and Mallory had been treated with medication.

2. The medical certificate provided by Dr Hendricks in which she diagnosed Ms Salinger’s injuries as major depression and post traumatic stress disorder.

3. The medical certificate provided by Dr Hendricks in which she diagnosed Mallory’s injuries as major depression and separation anxiety, oppositional defiant disorder and post traumatic stress disorder.

4. A statutory declaration sworn by Ms Salinger on 2 December 2005 in which she dealt with the circumstances of the accident and its consequences to herself and her family and treatment she had received. In respect of legal advice, she stated that her solicitor, Mr Foat, advised her on a number of occasions commencing in August 2003 to consider making a claim for compensation and that she had responded on each occasion that she could not cope with another set of legal proceedings and she was not able to think about compensation. She stated that her attitude to a claim for compensation changed following the conclusion of the coronial inquiry. She stated that at that point she realised that she had been badly affected by the accident and she had more time to attend appointments and to speak to her lawyers about such a claim. Discussions were held in April and May following which the claim was made to the Victims Compensation Tribunal and a notice of claim signed in August 2005.

5. Correspondence between the insurer and Burgess Foat rejecting the explanation for the delay but at the same time seeking further particulars of the claims. In a letter dated 17 October 2005, the insurer pointed to the deficiencies in the explanation, including the absence of material concerning the date on which Ms Salinger had first consulted her solicitor and when she had first received advice or had become aware of the need to lodge a notice of claim within the time limits provided for in the Act .

6. Reports of Dr Hendricks dated 27 April 2006 and 30 April 2006 in respect of her treatment and diagnoses of Ms Salinger and Mallory. These reports confirmed the diagnoses of major depressive disorders and post traumatic stress disorders.

7. An undated report of Lisa Mason, psychologist with the Sexual Assault Service of Hunter New England Health addressed to the insurer concerning regular consultations with Ms Salinger since August 2003. This report set out Ms Salinger’s ongoing symptoms which included sleep disturbance, nightmares, anxiety, sadness, fatigue, tearfulness, psychomotor agitation, poor concentration, feelings of detachment, intense distress, hypervigilance and general impairment of her daily functioning.

8. An affidavit of Mr Bruce Foat dated 8 November 2006 in which he stated that he had acted for Ms Salinger personally and through an employed solicitor. He confirmed Ms Salinger’s statement concerning the court proceedings in which she was involved after the accident. On the topic of advice given about making a claim, Mr Foat stated that he recalled advising Ms Salinger from time to time that she should consider making a claim for compensation. He recalled her informing him that she was just able to cope with other matters and unable to handle anything further at that stage. He stated that his personal observation of Ms Salinger during this period was that she was suffering emotionally and he did not want to push her. He stated affirmatively that neither he nor his employed solicitor had advised Ms Salinger in writing or verbally of the requirement to give notice of the claim within six months of the accident.

12 The applicant argued that the explanation provided was neither full nor satisfactory.

13 On the requirement that the explanation be full, the applicant pointed to what was said to be the absence of detail of the advice given to Ms Salinger and the extent of her knowledge of her rights and obligations, particularly in relation to time limits.

14 Accepting that Mr Foat has not advised her in respect of time limits, it was argued that there was no evidence of what Ms Salinger would have done, had she been told.

15 The court was cautioned against drawing inferences. I do not understand what inference I might be required to draw. I do not understand the relevance of evidence of what Ms Salinger would have done had she known of the requirement to give notice of her claim within six months. The evidence was that she was not told of this requirement. No inference is required.

16 In the absence of evidence that she was confused about the advice given, I do not consider it necessary that precise details of that advice be set out in the explanation. Ms Salinger was told of her entitlement to claim compensation and she chose not to pursue that entitlement. I am not satisfied by the arguments of the applicant that the explanation provided fails to meet the requirement that it be full.

17 The applicant argued that the explanation was not satisfactory. Whilst expressing sympathy for the tragedy of Ms Salinger’s situation, it was said that the references to stress and grief in themselves did not provide a satisfactory explanation.

18 It was pointed out that during the period in question Ms Salinger had dealt regularly with her lawyers on other matters. It was also argued that there was insufficient evidence concerning her state of mind to provide a basis for a satisfactory explanation.

19 I do not accept that there were the shortfalls in the evidence claimed by the applicant. The question to be determined is whether, on the basis of the evidence that is before the court, a reasonable person in the position of Ms Salinger would have been justified in experiencing a delay of more than two years in giving notice of the claim.

20 There have been a number of decisions concerning the difficulties which confront a court in determining how a reasonable person would act when that reasonable person’s capacity for action is affected by disorders of the mind.

21 It is true that Ms Salinger dealt with her lawyers on a regular basis. There was, however, considerable evidence that her dealings with her lawyers related to matters of pressing urgency. The evidence was that she was scarcely managing to cope with those matters of pressing urgency and that she was suffering from significant psychiatric illness which impaired her daily functioning. She was not informed of the requirement to give notice of the claim within six months of the date of the accident.

22 Taking those circumstances into account, I have concluded that a reasonable person in Ms Salinger’s situation would have been justified in experiencing the delay in the notification of the claim.

23 The application is dismissed.

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