Wiggins v Clarke

[2003] NSWCA 76

CITATION:	Wiggins v Clarke [2003] NSWCA 76
HEARING DATE(S):	09/04/03
JUDGMENT DATE:	9 April 2003
JUDGMENT OF:	Mason P at 28; Giles JA at 29; Ipp JA at 1
DECISION:	(1) Leave to appeal granted (2) Subject to the filing of a notice of appeal the appeal is upheld (3) Orders made by Judge Patten in the Court below set aside save in regard to the costs of the hearing (4) Leave granted to the claimant pursuant to s 52(4) of the Motor Accidents Act to commence proceedings more than three years after the date of the motor accident to which a claim related (5) Leave granted to claimant to file statement of claim in the District Court which is annexed to the affidavit of Glenn Michael Coyne sworn 18 October 2001, that statement of claim to be filed within fourteen days from today's date (6) Opponent to pay the claimant's costs of the appeal (7) No order disturbing the costs order made by Judge Patten (8) The opponent to have a certificate under the Suitors Fund Act if otherwise entitled.
CATCHWORDS:	MOTOR ACCIDENTS ACT 1988 - Section 52(4) - Commencing proceedings out of time - Whether the claimant provided a full and satisfactory explanation for delay - Whether the claimant demonstrated a lack of forensic diligence - Whether it would be unjust to the opponent to allow the matter to be pursued anew. ND
LEGISLATION CITED:	Motor Accidents Act 1988, s 52(4)
PARTIES :	Mary Ann Wiggins (Claimant) Leigh Anthony Clarke (Opponent)
FILE NUMBER(S):	CA 40537/02
COUNSEL:	D Kennedy SC/B Slowgrove (Claimant) G Bateman (Opponent)
SOLICITORS:	Coyne Whittemore (Claimant) Blackmore & Associates (Opponent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 14000/01
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

CA 40573/02
DC 14000/01

MASON P
GILES JA
IPP JA

Wednesday 9 April 2003

MARY ANN WIGGINS v LEIGH ANTHONY CLARKE

Judgment

1 IPP JA: This is an application for leave to appeal against a decision of Judge Patten of the District Court whereby he refused the claimant leave under section 52(4) of the Motor Accidents Act 1988 to commence proceedings out of time.

2 On 9 February 1989 the claimant’s three year old son died as a result of a motor vehicle accident. The child was a passenger in the motor vehicle driven by the opponent. Judge Patten observed that it seemed plain that the opponent’s negligence was responsible for the child’s death.

3 The claimant commenced proceedings within time by action in the District Court. She failed however to prosecute the proceedings with diligence and they were struck out on 19 June 1995. Rather than apply for reinstatement, the claimant sought to commence a fresh action by obtaining leave under section 52(4).

4 The delay in recommencing proceedings is long, several years. But the claimant did provide an explanation for the delay. She said that as a result of her son’s death she suffered such psychological harm that she was unable to take the steps necessary to commence and prosecute the proceedings in time.

5 Apart from her own affidavit, her application was supported by reports from a number of doctors including three psychiatrists, Drs South, Dent and Lovell. They all testified as to mental harm suffered by the claimant in consequence of her son’s death.

6 Judge Patten gave three reasons for dismissing the claimant’s application. Firstly he said that it was impossible to conclude that she had provided a full and satisfactory explanation for her delay. He said that the psychiatric evidence of Dr Lovell and Dr Dent fell well short of providing a full and satisfactory explanation.

7 The second reason was that the claimant’s “extreme lack of forensic diligence provides another reason for declining the relief she seeks”.

8 The third reason his Honour gave was that it would be unjust to the opponent to allow the matter to be pursued anew. According to his Honour, there was no reason to think that the matter would in the future be pursued any more diligently than it was in the past.

9 I turn firstly to the first reason given by his Honour, namely, that the claimant had not provided a full and satisfactory explanation for the delay.

10 At the outset I am of the view that the reasons given by his Honour for his conclusion are inadequate. His Honour provided no explanation for the conclusion to which he came, and it is impossible to ascertain from his reasons what motivated him to come to the conclusion that he did.

11 Mr Bateman who appeared for the opponent did attempt to support his Honour’s conclusion by advancing a number of arguments. I should deal with these.

12 Firstly, Mr Bateman submitted that it appeared from the reports of Drs Dent and Lovell that they had not been given material information which was relevant to the claimant’s condition. In summary, Mr Bateman said that the doctors did not know that the claimant had in fact commenced an action in 1990, that she had instructed solicitors in connection with that action and provided sufficient particulars to enable proceedings to be brought, that she had changed her solicitors and that later she had again instructed solicitors to commence the present proceedings.

13 He also pointed out that the doctors did not appear to have been told that the claimant had crossed the Harbour Bridge to see medical practitioners and had been employed at least on a part-time basis during the relevant period. The reference to crossing the Harbour Bridge had some importance because there was evidence by the claimant that she was fearful of making that journey and that was another reason for her failure to keep certain medical appointments.

14 In my view there are two reasons which answer the points made by Mr Bateman. Firstly, it is apparent from Dr Dent’s report that he was aware that there had been a delay in prosecuting the claim instituted by the claimant, that she had instructed two sets of solicitors and that she had failed to attend medical appointments. It is true that Dr Dent did not mention all the detail to which Mr Bateman referred but the general import of Dr Dent’s report is that he was aware in broad terms of the matters on which Mr Bateman relied.

15 Dr Lovell provided less information as to these matters than Dr Dent but he too was aware that the claimant had not provided instructions to pursue her claim.

16 My impression on reading the forcefulness with which Drs Dent and Lovell expressed their opinions in their reports is that the information omitted therefrom, on which Mr Bateman relied, would not have made a significant difference to their opinion.

17 The second reason which leads me to the conclusion that this point made by Mr Bateman is not persuasive is that Drs Dent and Lovell were not cross-examined and their reports stand in the form that they were tendered to the Court.

18 The second point made by Mr Bateman was that the claimant, on her own evidence, had from time to time seen her own psychiatrists. This occurred broadly speaking over the entire period of the delay. That is indeed correct but in my opinion there is a fundamental difference between the claimant seeing her own psychiatrist as to her own health and seeing psychiatrists for the purposes of obtaining evidence in order to bring a claim. It is quite apparent from the reports of the psychiatrists that the claimant had serious guilt feelings concerning her child’s death. She told both Dr Dent and Dr Lovell that she had a resistance to suing and regarded the act of bringing a claim in a sense of seeking blood money. That explanation in my view satisfactorily explains why she was able to see her own psychiatrist for her own health and not forensic psychiatrists for the purposes of the litigation.

19 Next, Mr Bateman pointed out that the claimant had the capacity to see her own solicitors, which she did. She had instructed them from time to time. Further, she had been employed on a part time basis. He submitted that these matters detracted from the generalised evidence of the psychiatrists to the effect that the claimant’s state of mind explained her inability to keep her appointments and prosecute the claim in time.

20 The first point to make in regard to this argument is that, while the claimant was cross-examined, the points made now by Mr Bateman on appeal were not put to her and no explanation was sought from her. In my view, this was perfectly understandable as it is apparent on reading the reports that the psychiatrists accepted that there were intermittent episodes where the claimant was able to live an ordinary life and perform the activities to which Mr Bateman referred. Nevertheless, when it came to actually seeing the psychiatrists for the purposes of obtaining evidence to bring a claim for her nervous shock arising out of her son’s death, her mental state precluded her from going through with the arrangements.

21 Generally, Mr Bateman submitted that the claimant’s explanation was in very broad terms, and there was little material to explain why there had been delay from a period of 1995 after her initial claim was struck out. There is force in what Mr Bateman submitted but again the problem is that when the claimant was cross-examined no attempt was made to challenge her about the period after 1995. Moreover, when one has regard to the reports as a whole, it is quite apparent that the psychiatrists were of the view that the claimant’s condition was a continuing one and persisted from the time of her son’s death until at least 1999.

22 For those reasons I do not accept Mr Bateman’s submissions that the claimant did not provide a full and satisfactory explanation for the delay.

23 As regards the second ground on which Judge Patten relied, namely the claimant’s lack of forensic diligence, in my view there is a fallacy in characterising the delay on the part of the claimant as a lack of forensic diligence. The reason for the delay was her mental condition. Both psychiatrists regarded her disorder as being a recognised psychiatric illness, they were both of the opinion that she was, by reason of her state of mind and health and the panic attacks from which she suffered, quite unable to see the doctors concerned. So I do not accept that there was any lack of forensic diligence, as that term is to be understood on the part of the claimant.

24 As regards the finding that it would be unjust to the opponent to allow the matter to be pursued anew, as I have pointed out the only ground on which his Honour relied for the injustice which he considered would arise, is that there was no reason to think that the claimant would pursue the matter more diligently in the future. I do not accept his Honour’s conclusion in this regard. On the evidence and in particular according to the claimant’s own affidavit it appears that her condition has improved. She has been able to cope recently with seeing Drs Dent and Lovell and she has asserted that she will see any doctors appointed by the opponent for the purposes of these proceedings. She is currently seeing a psychiatrist for her ongoing problems, and has in recent times kept her medical appointments. When cross-examined, the claimant was not challenged as to these assertions. While Dr Lovell was of the view that given the chronicity of her symptoms the claimant’s condition was unlikely to abate entirely, he considered that some improvement could be achieved. Accordingly, I consider that his Honour erred with respect in the conclusion to which he came. Finally, in this regard, I take into account the fact that the opponent does not assert that he suffered any actual prejudice in consequence of the delay.

25 In the circumstances, I would grant leave to appeal and subject to the filing of a notice of appeal uphold the appeal. I would set aside the orders made by Judge Patten save in regards to the costs of the hearing and would grant the claimant leave pursuant to section 52(4) of the Motor AccidentsAct to commence proceedings more than three years after the date of the motor accident to which a claim relates. I would grant her leave to file the statement of claim in the District Court which is annexed to the affidavit of Glenn Michael Coyne sworn 18 October 2001, that statement of claim to be filed within fourteen days.

26 I would order the opponent to pay the claimant’s costs of the appeal but would make no order disturbing the costs order made by Judge Patten.

27 I would order that the opponent have a certificate under the Suitors Fund Act if otherwise entitled.

28 MASON P: I agree.

29 GILES JA: So do I.

30 MASON P: The orders of the Court will be as indicated.

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Last Modified: 04/23/2003