Taha v Kunarsegaran

[2016] NSWDC 283

District Court

New South Wales

Medium Neutral Citation:	Taha v Kunarsegaran [2016] NSWDC 283
Hearing dates:	20 and 21 October 2016
Date of orders:	24 October 2016
Decision date:	24 October 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Dismiss the defendant’s notice of motion filed 5 February 2016. (2) Grant leave under s 109 of the Motor Accidents Compensation Act 1999 for the plaintiff to commence proceedings more than 3 years after the relevant motor vehicle accident. (3)   Order: (a)   the costs of the hearing over 2 days to be the defendant’s costs in the proceedings, (b)   otherwise, the cost of the summons and the notice of motion to be costs in the proceedings. (4)   List the matter for directions on Monday, 28 November 2016 at 10am before the Judicial Registrar. (5)   Order that the exhibits be retained.
Catchwords:	MOTOR ACCIDENT COMPENSATION – late claim – late commencement of proceedings – limitation period – expiration of time limit – delay – full and satisfactory explanation – explanation to the court - discretion
Legislation Cited:	Interpretation Act 1987, s 36 Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109
Cases Cited:	Buller v Black [2003] NSWCA 45 Ellis v Reko Pty Limited [2010] NSWCA 319 Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 Holt v Wynter (2000) 49 NSWLR 128 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Category:	Procedural and other rulings
Parties:	Sallyann Taha (plaintiff) Dinesh Kunarsegaran (defendant)
Representation:	Counsel: Mr C Stewart (plaintiff) Mr D Wilson SC and Mr N Hogan (defendant)   Solicitors: Thomas Booler Lawyers (plaintiff) Hall & Wilcox (defendant)
File Number(s):	2015/352856
Publication restriction:	None

Judgment

A. INTRODUCTION

1. Sallyann Taha was injured in a motor vehicle accident on 1 July 2012, made no claim until 28 January 2015 and commenced proceedings on 5 December 2015. The defendant’s insurer has denied the claim.

B. APPLICATIONS AND ISSUES

2. Ms Taha seeks leave to commence proceedings more than three years after the accident. The insurer seeks to have the proceedings dismissed for her failure to provide a satisfactory explanation for the delay in making a claim. It also resists leave being granted because of Ms Taha’s alleged failure to provide a full and satisfactory explanation for the delay in commencing proceedings and because the total likely damages do not reach the threshold for leave to be granted.

C. THE LATE CLAIM

(a) THE LEGISLATION

3. Section 72 of the Motor Accidents Compensation Act 1999 (“MACA”) provides that a claim must be made by notice to the insurer (s 72(2) MACA) within six months of the date of the motor accident (s 72(1) MACA) although a claim can be made after this date if the claimant provides a full and satisfactory explanation to the insurer for the delay in making the claim (s 73(1) MACA). If court proceedings are commenced after a late claim, the insurer may apply to have the proceedings dismissed on the ground of delay (s 73(5) MACA) and the claim must be dismissed unless the Court is satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim (s 73(7) MACA).

4. An explanation is not satisfactory unless a reasonable person in Ms Taha's position would have been justified in experiencing the same delay (s 66(2) MACA).

(b) THE EXPLANATION FOR THE DELAY

5. Ms Taha provided two statutory declarations to the insurer regarding the delay. In her first declaration dated 27 April 2015, Ms Taha recounts some of the history of her condition, and in conclusion, asserts that:

"35. As to why I did not lodge a personal injury claim for the injuries following the…accident…because I was just hoping it would get better. It was not until I saw Dr Guirguis and Dr Darwees Al Khawaja that I realised the seriousness of the injuries.

36. I was just hoping I would not have to go through the legal process again."

She also said:

"31. It was not until I had spoken to Dr Guirguis [apparently in December 2014] that I [was] advised to complete and lodge a personal injury claim form for my injuries."

And that (at [27]) "Dr Guirguis referred me to see a solicitor of Thomas Booler Lawyers."

6. In the second statutory declaration dated 1 September 2015, Ms Taha asserts:

"22. I reiterate that I was under the genuine misapprehension that the injuries to my neck and shoulder were aggravated as a result of the motor vehicle accident and would improve and settle with the passage of time as they did following the work injury on 18 August 2009.

23. I did not realise the seriousness of the injuries until the MRI Scan of the neck was performed in December 2014 and thereafter until I consulted Dr Al-Khawaja and he advised me on 30 January 2015 that I was most likely a candidate for surgery to the neck."

7. Ms Taha also gave oral evidence. Although she had lodged her claim for compensation with an insurer in respect of a previous motor vehicle accident in 2000 when she was 21, she denied being aware of the need to act promptly in pursuing her rights arising from a motor vehicle accident. She said, "But back then I wasn't aware of [the period of time I had to lodge] and I wasn't aware of it now, when I made the claim" (T19/25‑37).

(c) THE ISSUES REGARDING THE LATE CLAIM

8. On this evidence, three matters might be identified as being relied on by Ms Taha to explain the delay:

1. a hope or belief that her injuries would get better;

2. a hope that she would not have to go through the legal process; and

3. ignorance of the six‑month time limit.

9. The insurer challenged each of these matters. The insurer conceded that the explanation was full but disputed that it was satisfactory. The credit of Ms Taha was also challenged.

(d) CREDIT

10. The insurer relied on a number of matters to challenge Ms Taha's credit.

11. First, in a Medical Assessment Service (“MAS”) report by Dr John O’Neill conducted on 14 December 2015, Ms Taha denied any previous injury to her spine. This is inconsistent with her previous motor accident compensation in 2000 where she experienced "[n]eck injuries" and "bad back pain" (Exhibit 10) and with a work accident in October 2009 which led to repeated complaints of neck pain in visits to her doctor in 2009 to 2011 and "back pain" (T27/20).

12. Secondly, Ms Taha also informed Dr O’Neill that she was in hospital for two weeks after the accident whereas she was, in fact, only in hospital for two days.

13. Thirdly, Ms Taha informed Assessor Synnott that she was off work for 12 months after the 2012 accident and returned part‑time for six months but had to stop because of the pain and has not worked since. She told Dr O’Neill she was off work for two to three months then resigned and found a casual position elsewhere. She obtained a doctor's certificate in August 2012 certifying her unfit for work for three months, although that does not conclusively show that she did not work for that period. In her first statutory declaration, she said she took one month off work. In that document, she also said that she had been employed at the time of the accident as a coordinator by Federation Family Day Care earning $1,400.00 net a fortnight and that about a month later, she resigned "as I got another job offer" which "offered a higher salary". Yet Ms Taha's correspondence with the Fair Work Ombudsman in February 2013 established that she worked for Federation Family Day Care from 8 October 2012 to 31 January 2013, and also worked in other child care related businesses in July and September 2012.

14. All these various statements do not sit together comfortably.

15. Fourthly, the claim form which Ms Taha signed, and which was filled in by one Ms Ahlam Moussa as Ms Taha explained matters in answer to questions asked by Ms Moussa (T33/1), asserted that she was not working at the time of the 2012 accident and had lost no income because of it, contrary to the assertion in her first statutory declaration. Ms Taha testified that she read the form at the time of its creation (T40/15-19).

16. Fifthly, in the claim form, in both statutory declarations and initially in her oral evidence, Ms Taha asserted that the accident arose from the defendant's car colliding with the rear of her vehicle. In the statement of claim, which she ultimately asserted in oral evidence to be correct, the collision involved three vehicles and the other vehicles were in front of her vehicle. She accepted that the accounts were inconsistent.

17. Ms Taha's demeanour in the witness box was not ideal. She had a tendency to be argumentative and often did not directly answer the questions. When confronted with the various apparent inconsistencies to which I have referred, Ms Taha referred to her inability to remember and her poor memory especially since the 2012 accident.

18. Ms Taha's statement of particulars does not assert any head injury or memory loss arising from the accident and it was not suggested in submissions to be an injury she suffered. Further, it was largely unsupported by any document. However, the GP Management Plan dated 24 March 2013, apparently created by Dr Norman Lum, does refer to a head injury and the defendant's chronology adopts that fact without demur.

19. Thus, in summary, Ms Taha's recollections of the accident, her work history, her injuries, her time in hospital, and her time off work after the accident all seem to be defective. Her demeanour was unhelpful. I must regard her as an unreliable witness. It was not, however, strongly submitted that she was knowingly giving false evidence under oath and notwithstanding all of the deficiencies in her evidence, I am not minded to so conclude. Perhaps her unreliability as a witness was due to a poor memory whether because of some undocumented head injury in the accident or otherwise. She has maintained for some time that she lost consciousness for a brief period during or after the accident.

20. Accordingly, I reject Ms Taha as a reliable witness. I do not find that she was lying under oath. Nevertheless, because of her unreliability, any evidence she gave must be tested against the documentary material, and for consistency with that material, before it could be safely accepted.

(e) MS TAHA'S HOPE NOT TO GO THROUGH THE LEGAL PROCESS AGAIN

21. The insurer did not contest that this formed part of Ms Taha's mindset in the period after the accident. A literal reading of this evidence and Ms Taha's statutory declarations leave uncertain whether this hope was carried by her from the date of the accident or after she decided to make a claim. If it was the latter, it could not be relevant as an explanation for the delay before December 2015. Even if the former, a hope not to go through the legal process (and in this context I regard a “hope” as no more than a desire or a wish) seems to have no force as a reason not to make a claim and engage in the legal process.

22. It may be said that a hope not to go through the legal process shows a consciousness about the process needed to achieve compensation and an unwillingness to engage in it; a conscious decision against litigation. I also note that “[a] person with knowledge of the six month time limit, in particular, cannot tarry” (Buller v Black [2003] NSWCA 45 at [95]).

23. If there is not some reasonable ground for that decision against litigation, it cannot become reasonable because of the existence of a hope, desire or wish. To hold otherwise would denude the six‑month requirement of all force. Accordingly, I do not regard a hope, and this hope in particular, as an explanation or part of an explanation that is satisfactory.

24. A reasonable person is not justified in failing to make a timely claim merely because of a hope or the absence of a hope, but because of events and "actions, knowledge and belief" (s 66(2) MACA).

(f) THE HOPE OF IMPROVEMENT IN HER CONDITION UNTIL SHORTLY BEFORE SHE MADE THE CLAIM

25. The comments that I have made about the hope of avoiding the legal process, largely apply to this hope of getting better. As indicated, it is not so much the hope that is relevant but rather it is the matters that underlie and inform that hope, and whether a belief is formed. Perhaps because of Ms Taha's claim to continuing and increasing back pain after the accident, this hope never came to be a belief in her, even less a belief that was reasonably based on facts that she understood and experienced then.

26. Ms Taha asserted in her first statutory declaration that she hoped to get better, and that it was not until she saw Dr Medhat Guirguis and Dr Darweesh Al Khawaja that she realised the seriousness of her injuries. But she did not see Dr Al Khawaja until 30 January 2015. As the claim was lodged on 28 January 2015, anything Dr Al Khawaja said could not have been relevant to her making a claim. The same error was repeated in her second statutory declaration.

27. As earlier indicated, Ms Taha gave evidence that her pain increased over time, and that since the 2012 accident "[f]rom the second that I had the injury, it increased" (T58/42). Thus, on her evidence, she remained in increasing pain from the accident of July 2012 through to December 2014 without making a claim.

28. It is true that scans in December 2014 indicated a deformity at the C4/5 and the C5/6 levels, but to some extent, these were manifested, perhaps not to the same extent, on scans since 2009. A CT scan on 2 September 2009 revealed a "slight degree of bone spurring" at the C4/5 and C5/6 levels. A MRI on 4 January 2010 revealed:

"At C4/5, there is a mild posterior disc protrusion…

At C5/6, there is a moderate focal left paracentral disc protrusion. This causes moderate narrowing of the left intervertebral foramen. It also indents the left side of the cord without causing compressive myelopathy."

29. Neck pain, severe headaches and tingling over the right shoulder remained in January 2010. On 15 March 2010, a MRI demonstrated a medium size left C5/6 disc protrusion impacting upon the left C6 nerve route. On 2 July 2012, the day after the accident, a CT scan of the cervical spine showed “no acute changes” and a MRI of the cervical spine revealed:

“At C4/5 level, uncovertebral osteophytes which extends into the left neural foramen causing mild spinal canal stenosis and mild left neural foraminal stenosis…

At C5/6, there is similar uncovertebral osteophytes with small focal disc protrusion on the left is also causing mild left neural foraminal stenosis."

30. A CT scan on the cervical spine on 27 February 2013 showed "[m]ild degenerative vertebral end plate changes were reported at C4/5”. There were “mild degenerative vertebral end plate changes and uncovertebral degenerative changes which mildly narrow the left C5/6 neural foramen" at C5/6. The CT scan on 1 December 2014 was similar, though it also reported kyphosis at the C5/6 and some deformities at C6/7 and C7/T1. A MRI was also obtained on 5 December 2014.

31. As a result of this history, the MAS Assessor, Dr O’Neill, stated in the affidavit of Naushad Husaini sworn 29 April 2016 at p 33 paragraph 3:

"The imaging changes on 2 July 2012 were largely unchanged from those on 4 January 2010. There would appear to have been very little change in the radiological appearance from 2 July 2012 to the CT scan of the cervical spine on 27 February 2013. Any progression in radiological changes between that time and the MRI scan on 5 December 2014 could not be attributed to the accident but only to progression of the disease, cervical spondylosis, with associated disc degeneration and protrusion."

32. Dr O’Neill determined that although there was a musculoligamentous strain in the lower back and a soft tissue injury in the neck caused by the accident, the "kyphotic deformity at C4/5 and C5/6 levels, large disc herniation at C4/5 and C5/6 levels touching the left C5 and C6 nerve root" were not caused by the accident. This opinion supports the complaint by Ms Taha of increasing pain over time as the cervical deformities have increased, including since the accident, but deny any major episode arising from the accident.

33. This view is supported by the GP Management Plan provided by Dr Lum, treating Ms Taha. In consultation with Ms Taha on 24 March 2013, he attributed the neck pain to degenerative changes at the C4/5 and C5/6 levels occasioned by an "old neck injury five years ago" and not to the 2012 accident.

34. I accept that Ms Taha has been in increasing pain over time.

35. Dr Guirguis completed the medical certificate on the final page of the claim form on 4 December 2014 and included an assertion that the injuries were "consistent with the circumstances of the motor accident described [by Ms Taha]." I accept that Dr Guirguis referred Ms Taha to her current solicitor, a matter which her current solicitor corroborates, and which was not disputed by the defendant. However, it is difficult to accept that Ms Taha did not realise the seriousness of her injuries until December 2014. All her previous scans almost annually over the previous five years had shown deformities at the C4/5 and C5/6 levels. She had been in increasing pain since at least July 2012. By December 2014, Ms Taha said, "[T]he pain in my neck and left shoulder/arm got worse. I got to the point where I could hardly lift my arm".

36. I do not accept that after almost two and a half years, Ms Taha believed, prior to seeing Dr Guirguis, that her pain would naturally subside. Although she claimed not to remember the "GP Management Plan", it is clear enough that Dr Lum formulated it with her. The plan was signed by Dr Lum and Ms Taha. It specifically refers to "NECK PAIN AFFECTING LEFT UPPER EXTREMITY OF CERVICAL SPINE SHOWS DEGENERATIVE CHANGES C4/5 C5/6 WITH LEFT SIDED NEURAL FORAMINAL NARROWING". Physiotherapy was recommended.

37. For these reasons, I do not accept that Ms Taha genuinely believed that her injuries would get better. Nor do I accept that she refrained from litigation because of that belief.

(g) IGNORANCE ABOUT THE NEED TO MAKE AN EXPEDITIOUS CLAIM

38. Although Ms Taha asserted this matter in cross-examination, she did not refer to this matter in her statutory declarations or her affidavit. Her solicitor conceded that there were no documents supporting an assertion that she was ignorant of the need to promptly claim, and accepted that it would commonly be a matter that would be explored in relation to a late claim.

39. These matters, coupled with Ms Taha's previous experience with making a motor vehicle claim, caused me to doubt that she was unaware of the need to make a claim promptly. Ms Taha conceded that from the time of the accident, she was aware of her entitlement to claim damages and that in order to process that claim, she was aware it was necessary to submit a claim, but denied being aware of the need for a claim to be submitted in a timely fashion (T60/6-21).

40. She could not remember being told of an abnormality in her spine in March 2013, but I have found that that was a matter discussed with Dr Lum. She accepted that had she been told in March 2013 of an abnormality in her spine, she ought to have seen a solicitor then (see T62/34-44).

41. In these circumstances, I do not accept that Ms Taha was unaware of the need to submit a claim in a timely manner in order to pursue litigation.

(h) CONCLUSION

42. None of the reasons that Ms Taha has advanced in her statutory declarations seem of themselves to be a satisfactory explanation for her delay in making a claim. Her counsel did not advance any other explanation. But as I have rejected her evidence as being reliable, perhaps because of her poor memory (noting that in one report of March 2013, it did refer to a head injury in respect to the 2012 accident), it then seems appropriate that her explanation should not be limited just to the oral and written evidence she gives, but should also include the documents she advanced or accepted as a part of the evidence on this application.

43. She did not ask the Court to draw any non‑obvious inferences from correspondence or documents (cf Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]). But the Court must seek to ascertain a real explanation from all the material in circumstances where the plaintiff is not a reliable historian and who might have a memory problem. Ms Taha did not make a timely claim. Yet, she was involved in a car accident. The circumstances of the accident are not altogether clear, but the police report seems to attribute blame to another driver, and Ms Taha certainly disclaims any fault. She was in hospital for two days. In Dr O’Neill’s report, she suffered soft tissue injuries and muscular ligamentous strains. She remained in pain, especially neck pain, which increased over time. She knew of the need to see a solicitor and make a claim if she wanted compensation. And I have found she knew of the need to do so in a timely manner.

42. So why is it that she did not claim in 2012 or 2013 but as she says, and as I accept, she claimed after she was referred by Dr Guirguis to a solicitor and after she was advised by Dr Guirguis to complete and lodge a personal injury claim?

43. Dr Guirguis seems to have been the first doctor to postulate a link between her neck injury and the 2012 accident. Ms Taha's other treating General Practitioner, Dr Lum, had denied such a link in March 2013.

44. Dr Guirguis did not clearly state in so many words that the accident was the cause of Ms Taha's pain, but he certainly recorded on the medical certificate, which was part of the claim form, that Ms Taha's injuries were "consistent with the circumstances of the [2012] motor accident described" and that a similar condition had "resolved before the accident". Further, Ms Taha told Dr O’Neill that when she showed the scan to Dr Guirguis "he told her the reported neck changes had arisen in the accident" (report of Dr O’Neill dated 19 April 2016, p 6 of 12). And it is true that Ms Taha's degenerative neck changes were worsening with time and indeed, were observably worse in 2014 than in 2012.

45. The history of the consultation with Dr Lum in March 2013 and the consultation with Dr Guirguis in December 2014 might be summarised as follows: in 2013, Ms Taha was informed that her neck pain was due to degenerative change in the cervical spine due to an old neck injury unconnected with the 2012 accident. In December 2014, Ms Taha had experienced continuing and increasing pain, was sent for more tests, was referred to a neurosurgeon (which might indicate the possibility of spinal surgery being raised, a course which eventually, after further tests, came to be recommended) and perhaps most significantly, Ms Taha was then told that the injury was consistent with the nature of (and may have arisen in) the 2012 accident and that she should see a solicitor and submit a claim form.

46. On this evidence, I conclude that the more serious condition revealed by Dr Guirguis, as Ms Taha asserts, together with the referral to a neurosurgeon and most especially the advice from a doctor of a possible causal connection between the 2012 accident and the injury, were the reasons Ms Taha decided to make a claim. Although she had pain before then, she refrained from making a claim because she was told by Dr Lum that the appropriate treatment was physiotherapy and that her condition was unconnected to the 2012 accident.

47. In my view, a reasonable person would be justified, on this advice given by Dr Lum in March 2013 (as recorded in the GP Management Plan), in delaying making a claim. Although Dr Lum was not giving her legal advice, I infer that she was aware, as would most people be, that a claim for injuries from an accident is pointless if the injuries are not caused by the accident. This question of causation is largely a medical question, and a medical expert had denied causation. Even if Ms Taha regarded her pain as arising from the accident, as she claims, if her treating doctor denied it, it was a matter that would influence a reasonable person in the making or delaying of a claim. It was reasonable for her not to claim. But when Dr Guirguis said otherwise, then that justification no longer persisted.

48. Although the lodging of the claim after consulting Dr Guirguis took a period in excess of one and a half months, this period included the Christmas break. Inquiries by her solicitors such as obtaining the police report, and seeking clinical notes and Centrelink and Australian Taxation Office (“ATO”) material were made. Those inquiries were prudent to undertake first, especially given Ms Taha’s admitted poor memory of the accident. In my view, the explanation proffered by the evidence on the application was one that would justify a reasonable person experiencing the same delay and thus was a satisfactory explanation.

49. As indicated earlier, the insurer conceded shortly after the explanation in the first statutory declaration was received that the explanation was full, but denied it was satisfactory. That concession about "fullness" was adhered to in these proceedings.

50. Further, s 73(4)(b) of MACA provides that the insurer loses the right to reject the claim on the ground of delay if the insurer does not reject the explanation within two months of receiving the explanation. In the context of s 73(4)(a), the basis of the rejection must be that it was not full and satisfactory. As the insurer accepted, and thus not rejected, that it was a full explanation, I am of the view that the insurer has lost the right to reject the late claim on the basis of the fullness of the explanation.

51. For these two reasons, namely the lost right and the concession in any event, I need not deal further with the question of the fullness of the explanation in respect of the late claim. I accordingly find that Ms Taha may, under s 73(1) of MACA, make a claim more than six months after the day of the accident, because she has provided a full and satisfactory explanation for the delay in making the claim.

52. Paragraph 1 of the defendant's notice of motion which seeks a dismissal for failure to provide a satisfactory explanation must be refused.

D. THE LATE COMMENCEMENT OF PROCEEDINGS

(a) THE APPLICATION OF THE LEGISLATIVE PROVISIONS

55. Section 109 of MACA in its application to Ms Taha provides that she is not entitled to commence proceedings more than three years after the date of the 2012 accident without leave of the Court. It also provides that time does not run for the purposes of s 109 from the time a claim has been referred to the Authority for assessment until two months after the certificate as to the assessment or exemption has been issued.

56. These proceedings were commenced on 1 December 2015, some six months after the three-year period had expired and hence Ms Taha seeks leave to commence the proceedings. It was common ground that absent the expiration of the limitation period, the lodgement of the Claims Assessment and Resolution Service (“CARS”) application form on 3 July 2015 and the issue of the certificate granting exemption on 2 November 2011 together would have stopped time running until after the date of the filing of the statement of claim.

57. Section 109(2) provides that in the circumstances identified, "[t]ime does not run", not merely for the purposes of the three year period in s 109(1) but for all "the purposes of this section". The purposes of this section include the granting of leave by the Court.

58. For this reason, I think the circumstance that time stopped running two days after the limitation period expired is a matter to be taken into account in the granting of leave (see s 109(1), which precludes claims being commenced "more than 3 years after", and s 36(1) of the Interpretation Act 1987 which provides that the day of the event is not to be included). In other words, as was accepted by the insurer, if the CARS application for exemption was made not on 3 July, but on 1 July 2015, (and it could not have been made until 10 June 2015 when the satisfactoriness of the explanation for the late claim was rejected and liability was denied) then no issue under s 109 of the MACA would arise as commencement would have been within time.

59. So the matter relevantly involves a delay of two days. The short period of delay is a matter ordinarily relevant to the granting of leave (see e.g. Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 at [59]).

60. The leave of the Court must not be granted unless a full and satisfactory explanation for the delay is provided (s 109(3)(a) MACA). Has the claimant provided such an explanation?

(b) THE PERIOD UP TO THE CLAIM BEING MADE

61. As to whether the explanation is satisfactory, the findings in respect of the delay up to the date the claim was made on 28 January 2015 and received on 2 February 2015, apply equally to the three-year period. Accordingly, I accept that there is a satisfactory explanation for the delay up to February 2015.

62. As to whether the explanation is full, the insurer denied that its concession in respect of "fullness" in respect of the late claim had any application in respect of the late commencement of proceedings. Certainly s 73(4) of the MACA, the loss of right to reject a late claim, has no application to a late commencement. And I also accept that a concession about a full explanation for a late claim, even if the issues are similar, should not, without more, be extrapolated to a concession about a late commencement. Such a concession was not, in terms, given.

63. To be full, an explanation must give 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" (s 66(2) MACA). The considerations identified in Project Blue Sky Inc v Australian Broadcasting Authority ((1998) 194 CLR 355; [1998] HCA 28 at [69]) as relevant to the construction of a statute, would not, in my view, suggest that the terms "the conduct" and "the actions, knowledge and belief of the claimant" extend to conduct, actions, knowledge and belief irrelevant to the claim and the delay. The relevant question is therefore: has Ms Taha failed to provide an account of any relevant conduct, action, knowledge or belief in the period in January 2015?

64. Not all of these matters, relevant conduct, actions, knowledge and beliefs are found in the narrative of Ms Taha's affidavit, or even in her two statutory declarations, annexed to that affidavit. But for the reasons already given, and because s 109(3)(a) of the MACA concerns whether a full and satisfactory explanation has been given "to the court", I think I must consider all the evidence before me, including documents that were annexed to her affidavit, were separately tendered or even documents tendered by the defendant without objection or otherwise. They are before the Court and become what is the "explanation to the court" on the claimant's application for leave.

65. The insurer raised a number of matters in submitting that a full explanation was not given.

66. First, it is said that Ms Taha, "visited Dr Guirguis on 3 occasions in the 6 months following the accident and did not mention the accident to her doctor at all" (defendant's outline of submissions dated 21 October 2016 at [18]). Yet these occasions are identified in Ms Taha's affidavit: the records of those visits are an annexure. The Court might not accept an item of evidence or a particular reason proffered by the plaintiff but this does not mean necessarily that the explanation is to be regarded as incomplete. Even if a rejection of a reason means an absence of evidence (which might be doubted), the absence of evidence is of something that is not the explanation (because it is rejected) rather than the absence of part of the explanation.

67. Secondly, the defendant asserts that Ms Taha:

"has omitted to reveal…that she consulted with Dr Lum some 21 months prior to the consultation and had a CT scan…showing the same issues with the C4/5 and C5/6 region…

[and that] Dr Lum prepared an injury management plan making specific reference to the…2012 accident" (defendant's outline of submissions dated 21 October 2016 at [23]-[24]).

68. Ms Taha did not recall this event, at least not in any detail, but accepted that it occurred. It is a relevant event, indeed, as I have earlier found, an event of some assistance to her in explaining the delay. This is not, in my view, an example of where a plaintiff has attempted to "pick and choose" (Buller at [42]) because Dr Lum's report was ultimately helpful and because I do not accept that the omission of this detail was deliberate.

69. Ms Taha did include a record of all attendances at the United Care Medical Centre where Dr Guirguis practises. She referred in her statutory declaration to a consultation with Dr Lum in 2014. It is apparent that some other evidence ultimately helpful to Ms Taha has been located by the defendant and apparently mistakenly omitted by the plaintiff. If the “explanation to the court” consists of all documents before the Court of whatsoever source - that are not denied by the plaintiff to represent an explanation - then the explanation contained in the records of the 2013 visit to Dr Lum is part of the explanation before me.

70. Thirdly, the defendant refers to a medical certificate which certifies that Ms Taha was unfit for work for three months as a result of the 2012 accident and which was not included in Ms Taha's affidavit. This document is said to contradict Ms Taha’s assertion "that her symptoms were merely an aggravation of her prior work injury." I do not think it follows that the aggravation of a prior injury cannot result in a doctor certifying unfitness for work for three months. Further, Ms Taha has frankly maintained that from the accident, she was in pain, which only got worse over time, a matter the defendant relied on in respect of this submission (defendant's outline of submissions dated 21 October 2016 at [27]). She did not mention that the delay was because she had no symptoms for a period. In that event, the certificate only corroborates her explanation rather than constitutes an omission from it.

71. Fourthly, the defendant relies on the incomplete work history given by Ms Taha from August 2012 for nearly two years. She identifies in her statutory declaration only Afroz Family Day Care as her employer for this period. The evidence showed that during this period, Ms Taha worked for a number of day care organisations, apparently on a short‑term arrangement, sometimes for perhaps as short as a few days. It is unsurprising that Ms Taha could not recall some of these organisations. I accept that in some cases, a full or complete explanation might require a detailed account of each job undertaken by a plaintiff. But in this case, Ms Taha’s explanation does not depend on the organisation for which she worked or did not work. Her case was that she remained in increasing pain and hoped to get better and not have to litigate. In my view, whether she did or did not have a job and what job that was, does not impact on and is irrelevant to the explanation she expressly gave or the one that was found.

72. This finding is also applicable to the period from July to September 2014, when Ms Taha referred only to a holiday in New Zealand.

73. In my view, a full explanation for the period up to January 2015 has been provided. Ms Taha’s evidence has been found to be incorrect in places. Some matters favourable to Ms Taha may have been mistakenly omitted but all the relevant materials are before the Court to enable the Court to assess the explanation, and I am not satisfied that any relevant matter has been deliberately omitted or left unexplained.

(c) THE PERIOD AFTER THE CLAIM

74. Once Ms Taha had commenced to prepare a claim in about December 2015, the matter was in the hands of her lawyers. One Ms Moussa helped her prepare a claim form. A solicitor in the firm, presumably Marcel Joukhador, ordered a police report, her medical records and Centrelink and ATO records. Medical appointments were arranged, and Christiane Etienne, a solicitor retained by Ms Taha’s solicitor's firm, assisted Ms Taha to prepare her first statutory declaration, purporting to explain the delay in making the claim. Notwithstanding this action, no application was made to CARS until it was two days too late.

75. Ms Taha’s solicitor, Mr Husaini, swore two affidavits on the application. In oral evidence, he conceded that the matter had been formally assigned to him, but that others commonly worked on such matters as they did in this case. He did not supervise their work and, if it was his role prior to 3 July 2015 to check on the matter, he had neglected to do so. He had, he said, overlooked the time limit.

76. Thus, the circumstance that the CARS application was two days late was, I think, due to Mr Husaini's lack of care.

77. On the one hand, negligence by a solicitor does not absolve the claimant of the need to make a claim in accordance with s 109. On the other hand, Ms Taha had entrusted experienced professionals to carry out a task and could reasonably expect they would. Nothing alerted her to Mr Husaini’s failure, she was not to know that the CARS application had not been lodged before it was. Indeed, it was her action in contacting Mr Husaini that prompted him to review the matter and realise his error (cf Hickey at [19]). Because the delay was such a short period of two days, it seems to me that these were matters for Mr Husaini to explain. He accepted his oversight.

78. The existence of no good reasons for a delay can be a full explanation, even if it is not satisfactory (see Buller v Black at [44]). This, I think, is a full explanation for the delay: Mr Husaini’s oversight. Is it satisfactory? Would a reasonable person be justified in relying upon an experienced professional, well familiar with litigation time limits, to comply in circumstances where the solicitor had been busily engaged in the matter up to that date, and Ms Taha had not seen any propensity in the solicitor to default? And the lodging of the application was only two days late?

79. In my view, a reasonable person in Ms Taha's position is justified by entrusting an experienced, competent professional that has lodged documents, in experiencing a two-day delay. The position may have been different if the delay was more substantial. A substantial delay would have required her to question her solicitor (cf Hickey at [59]).

80. Accordingly, Ms Taha has provided a full and satisfactory explanation to the Court for the delay and thus, the leave of the Court is not precluded by s 109(3)(a).

(d) THE DAMAGES THRESHOLD

81. There is another pre‑condition to the grant of leave; the total damages of all kinds likely to be awarded to Ms Taha if her claim succeeds must be not less than 25% of the maximum amount awarded for non-economic loss at the time of the accident. It is agreed that the relevant threshold figure in this case is $112,500.

82. Whether Ms Taha is likely to be awarded the threshold amount depends on whether her degenerative cervical spine issues are found to be attributable to the motor vehicle accident. But that is part of her claim. If she succeeds on all aspects of her claim, liability and damages, then I think she will likely establish that she has a serious cervical spine condition, possibly requiring a spinal fusion costing $30,000 to $40,000, and potentially impacting on her employment and need for care. Her current disability has been assessed by Dr Yuk Kai Lee, an orthopaedic surgeon, at 19% whole person impairment.

83. For these reasons, in my view, she is likely to obtain more than $112,500 in damages of all kinds if she is successful (wholly) on her claim.

(e) DISCRETION

84. There is a residual discretion in the Court as to whether to grant leave. The defendant raises prejudice arising from the delay: presumptive prejudice; the inability to be involved in the plaintiff’s rehabilitation from any early point; inability to investigate various medical situations; and being denied the opportunity to investigate liability and contributory negligence.

85. Presumptive prejudice must be assumed with any delay, but little prejudice could be assumed to result from a two-day delay in the application to CARS. Some prejudice might be expected to result from a two-year delay in the lodgement of the claim, but that could not be the primary consideration under s 109. I note that there is no comparable discretion under s 73.

86. In any event, the existence of medical reports, including CT and MRI scans, approximately annually in the years before and after the accident, mitigate any prejudice arising from late investigations about whether the cervical spine deformity was caused by the accident. As to liability, the police report records the names and details of the other parties to the accident, which would assist the defendant to obtain other accounts of what occurred. Also, the explanations for the delay in the statutory declarations of Ms Taha provide a fertile area for the defendant to identify inconsistencies in her evidence, on both liability and quantum, with the result that the defendant has an advantage arising from the delay that would not have accrued to him if Ms Taha had complied with the time limits for making claims and commencing proceedings.

84. The defendant has ample opportunity to gather expert evidence on liability, causation and damages. The defendant has led no evidence of actual prejudice resulting from the delay. In all the circumstances, I would not deny a grant of leave by reason of the claimed prejudice.

85. But, one other matter should be mentioned. There may be a circumstance that leave should be denied if a claim is small, or if prospects are poor. I have considered the size of the claim in relation to the threshold under s 109(3)(b).

86. Ms Taha faces a challenge on liability. She is not assisted by her inconsistent accounts of the accident and her concession that she retains no memory of it.

87. The challenges in proving substantial damages may be even greater because Ms Taha needs to establish that her degenerative cervical spine issues were caused by the accident. Dr O’Neill, the MAS assessor, concludes that the accident did not cause her cervical spine deformity. When I asked counsel to identify an expert opinion to the contrary, none could be found. The best that could be said is that Dr Guirguis and Dr Lee do not rule it out, and perhaps they accept that the injuries are consistent with the accident. Dr Richard Powell says that the conditions are not fully explained by the accident, but are partially attributable to it.

88. This is not the occasion to make a final conclusion as to the strength of Ms Taha’s case on liability or damages. There may be other expert evidence given at trial. I do not think Ms Taha should be deprived of an opportunity to conduct the proceedings merely because she faces some difficulties on liability, causation, or damages, recognising that she did delay in making a claim and commencing proceedings, and also recognising that she has been found to have provided a full and satisfactory explanation.

89. Accordingly, in all the circumstances, I propose to grant leave under s 109.

E. COSTS

93. Ms Taha seeks that costs be costs in the cause, while the defendant seeks the costs in any event. No authorities were referred to, although Holt v Wynter (2000) 49 NSWLR 128 supports a submission by the defendant for costs.

94. On the other hand, Ms Taha has been found to have provided a full and satisfactory explanation, even though that explanation was hampered somewhat by her memory challenges.

95. Given that the defendant has had the opportunity to cross‑examine Ms Taha, the motion has been of some value to him. It may lessen the time for hearing. Much of the evidence gathered for this application may be relevant for the trial. In all those circumstances, I propose to allow the defendant’s costs of the two days of the hearing to be the defendant’s costs in the cause, but otherwise, order that the cost of the summons and the costs of the notice of motion to be costs in these proceedings.

F. ORDERS

96. The orders of the Court are therefore:

1. Dismiss the defendant’s notice of motion filed 5 February 2016.

2. Grant leave under s 109 of the Motor Accidents Compensation Act 1999 for the plaintiff to commence proceedings more than 3 years after the relevant motor vehicle accident.

3. Order:

1. the costs of the hearing over 2 days to be the defendant’s costs in the proceedings,

2. otherwise, the cost of the summons and the notice of motion to be costs in the proceedings.

4. List the matter for directions on Monday, 28 November 2016 at 10am before the Judicial Registrar.

5. Order that the exhibits be retained.

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Decision last updated: 03 November 2016