Whitmore v Simon

[2021] NSWDC 137

District Court

New South Wales

Medium Neutral Citation:

WHITMORE v SIMON [2021] NSWDC 137

Hearing dates:

19 MARCH 2021

Date of orders:

19 MARCH 2021

Decision date:

19 March 2021

Jurisdiction:

Civil

Before:

M Sidis ADCJ

Decision:

Orders:

(1)   The motion filed on behalf of the defendant on 20 December 2020 is dismissed.

(2)   The defendant is to pay the plaintiff's costs of the motion.

(3) On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020.

(4)   The plaintiff is to pay the defendant's costs of that application.

(5)   By consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.

Catchwords:

PERSONAL INJURY – motor accident – substantial period of delay– applications to dismiss and for leave to commence out of time – minor at time of accident – disadvantage – involvement of alcohol and joint illegal enterprise – serious injuries and disabilities.

Legislation Cited:

Motor Accidents Compensation Act 1999 ss 66(2), 109

Category:

Procedural rulings

Parties:

Plaintiff:
Frederick John Whitmore
Defendant:
Keenan Simon

Representation:

Counsel:
Plaintiff: Mr L Brazel
Defendant: Mr C Hart

Solicitors:
Plaintiff:
Slater and Gordon Lawyers
Defendant:
McCabe Curwood Pty Ltd

File Number(s):

2020/00283839

Publication restriction:

nil

Judgment

1. Mr Frederick John Whitmore was injured in a motor vehicle accident that occurred on 20 December 2013 when he was 13 years old; he is now 20. His claim for damages for injuries suffered in the accident was forwarded to the insurer of the motor vehicle on 15 August 2019. On about 20 August 2019, an explanation for the delay in lodging the claim was provided to the insurer. The insurer advised the plaintiff's solicitor that it accepted the explanation on 28 February 2020. On 7 April 2020, the insurer advised that it denied liability for the claim. On 26 August 2020, the principal claims assessor for the Motor Accidents Claim Resolution Service issued a certificate that permitted the commencement of proceedings in this Court. A statement of claim was filed on 1 October 2020 in which, in addition to the claim for damages, the plaintiff sought leave pursuant to s 109 of the Motor Accidents Compensation Act 1999 (“the Act”) to commence proceedings out of time. A defence was filed on 16 November 2020 in which issues were raised of joint illegal enterprise, contributory negligence and the absence of leave to commence proceedings.

The applications before the Court

2. By a motion filed on 21 December 2020, the defendant sought to have the proceedings dismissed on the ground that they were commenced without leave, or alternatively, that the proceedings have not been prosecuted with due despatch. The motion came before the Court on 18 March 2020. At the same time, the plaintiff, without objection by the defendant, sought to advance his application for leave to commence proceedings out of time. The defendant's application was supported by the affidavit of his solicitor, Mr Andrew Gorman, dated 21 December 2020; the plaintiff's application was supported by the affidavits of his solicitor, Mr Douglas Williams, of 29 January 2021 and his own affidavit of 11 March 2021.

3. Although the orders sought in the motion brought by the defendant referred to the failure to seek leave, the thrust of the defendant's argument in support of the claim for relief went to the issue of the plaintiff's explanation for the delay in commencing proceedings.

4. The defendant acknowledged that, while the insurer considered the explanation satisfactory when the claim form was lodged, it became dissatisfied after further investigation of the facts upon which the claim was based. Those facts related to the question of whether the plaintiff was engaged in a joint illegal enterprise at the time of the accident, and the extent to which both the plaintiff and the driver of the vehicle at the time of the accident were affected by alcohol. With respect, these matters were not relevant to the quality of the explanation for the delay. The plaintiff's explanation appeared in a statutory declaration dated 20 August 2019, and it was required to be measured against the requirements of s 66(2) of the Motor Accidents Compensation Act which provides as follows:

5. ‘In this chapter, a reference to full and satisfactory explanation by a claimant for non-compliance with a duty or 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.’

6. It must be noted that the definition addresses the explanation for the delay and provides that it must deal with a full account of the conduct, actions and knowledge and belief of the claimant from the date of the accident to the date upon which the explanation is provided. It also requires an assessment of the extent to which a reasonable person "in the position of the claimant" would have failed to have experienced the same delay.

7. The conduct of the defendant in resiling from its position that the explanation provided to the date of lodging the claim form does not sit well with the Court, based as it was, not upon the conduct and actions of the plaintiff from the time of the accident to the time of commencement of proceedings, but rather on his conduct and actions leading up to the accident itself.

8. I accept that the explanation was sparse, but it was simple. Little was done to pursue any right of compensation on behalf of the 13-year-old plaintiff until, approaching his 19th birthday, he took matters into his own hands. The plaintiff was in a situation of social disadvantage and he had limited education. His grandmother, with whom he lived at the time of the accident, was poorly educated, but she attempted to complete and lodge a claim form on his behalf. It was rejected because it was not properly completed. The plaintiff was led to believe by his grandmother, and through contact with police, that he had no right to compensation for injuries suffered in the accident. He was unaware of any time limit that might affect such rights of compensation as might be available to him.

9. On 4 April 2019, he first sought and obtained legal advice. The claim form was lodged with the insurer in August 2019, a not undue period of four months after obtaining legal advice. It was apparent that other steps in the process were taken between August 2019 and August 2020 when the CARS certificate allowed the commencement of proceedings. The statement of claim was filed a little over one month later on 1 October 2020. I was satisfied that the explanation provided was full and satisfactory, within that term, as defined by s 66(2) of the Act. It was not contended that I should find that a reasonable person in the plaintiff's position would not have been justified in experiencing the same delay. Thus, the defendant's claim for relief, based on the quality of the explanation, is dismissed.

The leave application

10. I turn then to the question of whether the plaintiff is to be granted leave to commence proceedings out of time. For the purposes of s 109(3)(a) of the Motor Accidents Compensation Act, I have already accepted that the explanation for the delay was satisfactory. The parties were in agreement that the value of the plaintiff's claim was likely to exceed the threshold provided for in s 109(3)(b). I must therefore proceed to consider the general principles that apply to the determination of whether to grant leave to proceed with a claim that is out of time.

11. For this purpose, it is necessary to take account of the disadvantage to the plaintiff in being denied the right to pursue a claim, and that to the defendant of dealing with a stale claim. This latter consideration is the basis for statutory limitation periods, with the intent of allowing potential defendants and their insurers to manage their affairs on the basis that a threat to litigation no longer pertains. In this respect, the defendant's concerns arising from the motor vehicle accident have some relevance.

12. The plaintiff's evidence concerning the accident was harrowing, both in respect of his own conduct and that of his companions, and in respect of the conduct of the police who attended the scene. I have already noted that he was 13 at the time of the accident, he lived with his grandmother in Chatham, a community near Taree. His father spent much of his life in prison. His mother had died, he believed as a result of substance abuse.

13. The accident occurred when the plaintiff was seated in the rear tray of the vehicle with a number of other young persons. The vehicle had been stolen and the plaintiff conceded the young people with whom he travelled had been engaged in other criminal activities through breaking and entering a number of properties. Alcohol had been consumed by the plaintiff and his companions and the driver of the vehicle. The plaintiff conceded that he was aware that the driver was affected by alcohol. The driver lost control of the vehicle and it overturned, leaving the plaintiff pinned beneath it. His companions and the driver decamped, leaving behind the plaintiff. The police who initially attended the scene refused to release him from underneath the vehicle or call for medical assistance unless he named the driver and his companions.

14. Harrowing though it might be, the plaintiff's recount of events leading to the accident provided substantial support for the defendant's allegations of joint illegal enterprise and contributory negligence.

15. The plaintiff suffered very serious injuries. He was taken to the John Hunter Hospital where it was recorded that he had suffered fractures at T12 and L1, 2 and 3 levels, together with an extensive laceration running diagonally across his back for which skin grafting was required. The resulting scar is tethered, highly unsightly, and it requires revision. The plaintiff was discharged on 13 January 2014; the time taken to recover from the injury cost the plaintiff a lengthy period of absence from school. On his return, he was involved in disputes with other students and was moved to a learning centre to complete his education to year 10. His affidavit contained unchallenged evidence that he continued to suffer from constant pain, restriction and discomfort in his back. He was not able to secure employment.

16. The result of this summary and of my deliberations was as follows. The plaintiff will face difficulties in pursuing his claim. He did not shrink in cross-examination from the propositions that criminal activity and alcohol were involved in the lead-up to the accident. Nevertheless, I was not able to conclude that his claim would inevitably fail in its entirety.

17. The defendant does face the presumptive prejudice arising from the delay in having the claim dealt with. While the defendant has made contact with the driver of the vehicle involved, there may be some actual prejudice if it is unable to locate any of the other of the plaintiff's companions. The plaintiff was unable to assist, having had no contact with them since the time of the accident. However, the plaintiff's concessions already noted will be of considerable assistance to the defendant in pursuing both of the aforementioned defences.

18. Overall, I considered that neither the uncertainties involved in bringing the claim to a successful conclusion, nor the considerations of prejudice, were sufficient to warrant the refusal of the plaintiff's application.

19. The plaintiff remains a young man whose prospects in life were already diminished by his socially and economically disadvantaged background. The severity of his injuries, and the consequences of the disability, discomfort and interruption to his education, have further considerably diminished his prospects.

20. Finally, I did not consider that the circumstances were such that the defendant would be unable to obtain a fair trial of the proceedings. I therefore propose to grant the relief sought. In so doing, I note that the plaintiff has failed to attend medical appointments arranged by the defendant, and I should alert the plaintiff to the peril in which he will place the continuing process of his claim if, without very good reason, he commits any further transgression of this nature.

21. The motion filed on behalf of the defendant on 20 December 2020 is dismissed. The defendant is to pay the plaintiff's costs of the motion.

22. On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020. The plaintiff is to pay the defendant's costs of that application. I make this decision because I regarded the issues raised by the defendant in respect of the application to have been reasonable and sensible, and to have considerable merit.

23. Further, by consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.

Orders:

1. The motion filed on behalf of the defendant on 20 December 2020 is dismissed.

2. The defendant is to pay the plaintiff's costs of the motion.

3. On the plaintiff's application for leave to proceed, I grant leave pursuant to s 109 of the Motor Accidents Compensation Act nunc pro tunc to the plaintiff to commence proceedings out of time, noting that those proceedings were commenced on 1 October 2020.

4. The plaintiff is to pay the defendant's costs of that application.

5. By consent, I make orders in accordance with the consent orders, signed and dated 19 March 2021, noting that the matter will be listed for further directions on 10 August 2020.

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Decision last updated: 26 April 2021