CATCHWORDS: LIMITATION OF ACTION – Motor Accidents Compensation Act 1999 (NSW), s 109(3) & s66(2) – dilatory conduct on the part of the applicant’s solicitor – who had onus of proof in the application for extension of time – whether “full” explanation included explanation for the conduct of the solicitor – whether “full” explanation required applicant to explain knowledge of the limitation period – whether the solicitor’s conduct was necessary for the explanation given to be an explanation of “satisfactory”
DECISION: (1) Leave to appeal granted subject to the condition that the insurer file a notice of appeal within seven days of the date of this judgment (2) Appeal dismissed (3) Appellant to pay the Respondent’s costs of the appeal and of the application for leave to appeal.
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40065/05 DC 3184/04
HANDLEY JA McCOLL JA BASTEN JA
5 September 2006
SMITH v GRANT
Judgment
HANDLEY JA: I agree with Basten JA.
McCOLL JA: I agree with Basten JA.
BASTEN JA: On 8 December 1999, Ms Tracy Lynnda Grant was injured in a car accident. Her solicitor took appropriate steps, generally in a timely fashion, to obtain compensation for her pursuant to the Motor Accidents Compensation Act 1999 (NSW) (“the 1999 Act”). He obtained a medical assessment and sought to have the claim resolved, both by informal settlement procedures and through the statutory scheme known as the “Motor Accidents Claims Assessment and Resolution Service” (known as “CARS”): see s 98. What he did not do, however, was to commence proceedings in the District Court, prior to the expiry of the limitation period on 8 December 2002.
The solicitor stated in evidence that the reason for not commencing court proceedings was that, the insurer having admitted liability, he was confident that the matter could be resolved through the CARS process. If the CARS process had been commenced prior to the expiration of the limitation period, time would have ceased to run until two months after a certificate was granted: s 109(2). However, the CARS process was not invoked until 26 September 2003,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Smith v Grant [2006] NSWCA 244
Case
[2006] NSWCA 244
Decision Date
CaseChat Overview and Summary
The case of Smith v Grant involved an appeal concerning an application for an extension of time to lodge a claim under the *Motor Accidents Compensation Act 1999* (NSW). The applicant sought this extension due to delays in lodging the claim, and the respondent insurer was critical of the conduct of the applicant's solicitor.
The central legal issues before the court were whether the applicant had provided a "full and satisfactory" explanation for the delay, as required by section 66(2) of the Act, and who bore the onus of proof in establishing this explanation. Specifically, the court considered whether a "full" explanation necessitated the applicant detailing their solicitor's conduct or their own knowledge of the limitation period.
The court reasoned that the assessment of a "full and satisfactory" explanation involves a normative judgment, requiring the delay to be something a reasonable person in the claimant's position would have been justified in experiencing, consistent with the objects of the Act, including early resolution of claims and provision of compensation. While the solicitor's conduct was relevant to the delay, the court held that section 66(2) did not directly require the solicitor's conduct to be "justified." The applicant was not obliged to anticipate every criticism of her solicitor or explain her knowledge of applicable diligence standards. Her account, including her solicitor's affidavits, constituted a "full account" without her needing to undertake such a task, especially as the insurer did not cross-examine her or her solicitor on these matters.
The appeal was dismissed, with the appellant ordered to pay the respondent's costs of the appeal and the application for leave to appeal. Leave to appeal was granted subject to the insurer filing a notice of appeal within seven days.
Orders
Orders of the court
(1) Leave to appeal granted subject to the condition that the insurer file a notice of appeal within seven days of the date of this judgment; (2) Appeal dismissed; (3) Appellant to pay the Respondent's costs of the appeal and of the application for leave to appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Adducing such evidence is prohibited by s 131(1) of the Evidence Act 1995 (NSW), unless one of the exceptions provided in sub-s (2) applies. On the face of it, no exception applied and it was inappropriate for the solicitor to draft an affidavit containing details of the communications, it was inappropriate for counsel to seek to rely on the affidavit material to that effect and its admission involved legal error. The error was compounded by reference to specific amounts in his Honour’s judgment. The Court was informed that an appropriate objection was taken by the defendant to the tender of the evidence, but the objection was overruled. However, because the conduct in question, both of the claimant’s legal practitioners and of the judge, have no material bearing on the outcome of the appeal, no further consideration of this issue is appropriate.Conclusions As noted above, the assessment required to be made of the explanation given by the claimant, for it to be “full and satisfactory” has been said to involve a normative judgment. The normative element is encompassed by the need to describe the delay incurred as something which a reasonable person in the position of the claimant “would have been justified” in experiencing. The relevant norms or standards are those to be derived from the scheme of the 1999 Act, including its objects, as set out in s 5. One relevant object of the Act is “to provide compensation for compensable injuries” and “to encourage the early resolution of compensation claims”: s 5(1)(b). Of more immediate relevance, is the statutory scheme in Chapter 3, Part 3.4, with respect to medical assessment where there is a medical dispute between the claimant and an insurer, and the establishment of the CARS process as an alternative to litigation. Both of these statutory procedures were invoked in the present case. Reasonable attempts were made at settlement. These steps were all in conformity with the norms applicable to a reasonable person pursuing a claim for motor accident compensation. The insurer was critical in certain respects of the conduct of the claimant’s solicitor. The actions of the solicitor were undoubtedly a relevant part of the explanation for the delay. However, there is nothing in the language of s 66(2) which directly requires that the conduct of the solicitor be “justified”. Indirectly, the solicitor’s conduct may be called into question to the extent that it is relevant to determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay. However, it was not necessary for the claimant to anticipate each criticism which might have been made of her solicitor and identify what her state of knowledge or belief was in relation to his compliance with standards of diligence which might be applicable to him. Her account, which included the material contained in her solicitor’s affidavits, is properly described as a “full account” without her having undertaken that task. If the insurer wished to demonstrate that a reasonable person in her position would have questioned her solicitor about aspects of the delay, or sought other advice, those matters could have been put to her in cross-examination. However, the insurer did not cross-examine either her or her solicitor.