Wightley v Whitworth
[2014] NSWDC 243
•19 December 2014
District Court
New South Wales
Medium Neutral Citation: Wightley v Whitworth & Anor [2014] NSWDC 243 Hearing dates: 16 July, 15 August & 17 October 2014 Decision date: 19 December 2014 Before: Levy SC DCJ Decision: 1.The notice of motion filed by the defendants on 7 May 2014 is dismissed;
2.In respect of the notice of motion filed by the plaintiff on 21 May 2014, pursuant to s 73(1) and s 109(3) of the Motor Accidents Compensation Act 1999, the time for the plaintiff to file her statement of claim arising from the accident on 26 August 2006 is extended to 11 March 2014;
3.I will hear the parties on the appropriate order for costs in relation to both notices of motion;
4.The exhibits may be returned;
5.Liberty to apply on 7 days notice if further or other orders are required.
Catchwords: LIMITATION OF ACTIONS - related contested applications - first, by defendants seeking dismissal of plaintiff's claim for procedural non-compliance with time limits imposed by Motor Accidents Compensation Act 1999 - secondly, by plaintiff seeking leave to proceed with motor vehicle accident personal injury claim filed out of time - whether delay fully and satisfactorily explained - whether relevant prejudice demonstrated; COSTS - which party should pay costs Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 109 Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Nominal Defendant v Browne [2013] NSWCA 197
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Walker v Howard [2009] NSWCA 408Category: Interlocutory applications Parties: Amy Ruth Wightley (Plaintiff)
Matt Whitworth (First defendant)
Brent Taylor (Second defendant)Representation: Mr J Reimer (Plaintiff - 16 July 2014)
Ms E Welsh (Plaintiff - 15 August & 17 October 2014)
Mr B Wilson (Defendants)
Brydens (Plaintiff)
Moray & Agnew (Defendants)
File Number(s): 2014/4295 Publication restriction: None
Judgment
Table of Contents
Notices of Motion
[1] - [4]
Procedural history
[5] - [10]
Legislation and Issues
[11] - [16]
Evidence array
[17] - [19]
Facts
[20] - [63]
Issue 1 - Whether the plaintiff's explanation is "full"
[64] - [69]
Issue 2 - Whether the plaintiff's explanation is "satisfactory"
[70] - [71]
Issue 3 - Whether damages are likely to exceed $87,750
[72] - [77]
Issue 4 - Whether prejudice is shown
[78] - [80]
Disposition
[81]
Costs
[82] - [83]
Orders
[84]
Notices of Motion
Two procedural notices of motion require determination. Each relates to the plaintiff's claim for damages for personal injuries arising from a motor vehicle accident that occurred on 26 August 2008. The plaintiff's statement of claim was filed out of time on 11 March 2014.
The first motion was filed on behalf of the defendants on 7 May 2014, and seeks dismissal of the plaintiff's claim because the plaintiff failed to comply with the procedural requirements of s 72(1) and s 73(1) of the MotorAccidents Compensation Act 1999 concerning her late claim and the provision of a full and satisfactory explanation for the delay in commencing the present proceedings outside the time prescribed by that statute ["MAC Act"].
The second motion was filed on behalf of the plaintiff on 21 May 2014, and seeks declaratory orders that the plaintiff has provided a full and satisfactory explanation for the delay for the late lodgement of her claim form (s 73(1) of the MAC Act), and that time be extended for the filing of her statement of claim that was filed on 11 March 2014 (s 109 of the MAC Act).
The context of these motions is that the relevant time for the plaintiff to have complied with the statutory obligation to lodge an initiating claim form was 26 February 2009.
Procedural history
The motions were initially heard on 16 July 2014, at which time Mr J Reimer appeared for the plaintiff, and Mr B Wilson appeared for the defendants. For reasons that are not necessary to here review, Mr Reimer was briefed only very shortly before that date. These reasons should not be read as being in any way critical of him.
In the course of delivery of argument on behalf of the defendant on 16 July 2014, the plaintiff made an application for an adjournment of that hearing in order to avail herself of the opportunity of obtaining further evidence for the purpose of enhancing the prospects of her claim to the relief sought.
On behalf of the defendants, Mr Wilson opposed any adjournment as the stage had been reached where the defendant's evidence and arguments were complete, and the defendant had in good faith come to court to address the issues that had been well known to the parties for some considerable time. That position was plainly correct. After hearing further argument, and for the reasons then given, the application for an adjournment was refused, following which judgment on the substantive motions was reserved.
On 8 August 2014, before the delivery of a judgment on the motions, the plaintiff filed a further notice of motion seeking to re-open the hearing to call further evidence.
On that occasion, Ms E Welsh appeared for the plaintiff. It transpired that she had been briefed to appear for the plaintiff on the original application, but unforeseen circumstances had arisen that prevented her from appearing at the hearing. In those events, it has transpired that her replacement, Mr Reimer, had unfortunately not been fully instructed by the plaintiff's solicitor, and some evidence and argument, which was intended to be relied upon by the plaintiff in the substantive motions, had not been presented at the original hearing.
On 15 August 2014, the latter motion was heard, and for the reasons delivered at that time, the application to re-open was granted, with costs of the application to be determined at the conclusion of the substantive motions. The further hearing of the motions was then stood over for a resumed hearing, which took place on 17 October 2014, following which judgment was again reserved.
Legislation and Issues
The relevant legislative provisions governing the motions are s 66(2), s 72, s 73 and s 109 of the MAC Act.
Section 72(1) of the MAC Act provides that in the case of a late claim, the claimant must provide a full and satisfactory explanation for the delay when a claim is brought out of time.
Section 73(1) of the MAC Act requires that a notice of a claim of the present kind, must be made to the insurer within 6 months. The plaintiff had not complied with that time constraint, which therefore means that she must seek the leave of the Court to proceed with her late claim, which is otherwise out of time.
Section 66(2) of the MAC Act requires that in circumstances where there has been non-compliance with a duty arising under that Act, a full and satisfactory explanation for such non-compliance must be given. That sub-section provides that an explanation is not full or satisfactory unless a reasonable person in the position of the claimant would have failed to have complied with the duty in question, or would have been justified in experiencing the same delay.
Section 109(3) of the MAC Act requires that the court must not grant leave for the claimant to proceed out of time unless a full and satisfactory explanation for the delay is provided, and the likely damages threshold there stated, in this case, $87,750, is met.
The issues calling for decision involve the determination of whether the plaintiff can satisfy the Court that her circumstances justify the grant of leave to proceed, having regard to the above statutory requirements.
Evidence array
No oral evidence was adduced in support of either motion. The parties relied upon the affidavits and the other documents described below.
The defendants relied upon the following material:
(1) An unsworn affidavit of Ms Nicola Smith, solicitor for the defendant, dated 6 May 2014, comprising some 40 pages, including 16 exhibited documents;
(2) An affidavit of Ms Nicola Smith, solicitor for the defendant, affirmed 6 May 2014, including 7 exhibited documents comprising some 12 pages;
(3) Exhibit "1", comprising a medical report from Dr FJ Harvey, orthopaedic surgeon, dated 29 January 2014;
(4) Exhibit "2", comprising a statutory declaration sworn by the plaintiff on 17 April 2009.
The plaintiff relied upon the following material:
(1) An affidavit of the plaintiff Amy Ruth Wightley, affirmed on 27 June 2014;
(2) An affidavit of Janet Elizabeth Wightley, the mother of the plaintiff, sworn on 26 June 2014;
(3) An affidavit of Graham Cecil Wightley, the plaintiff's father, sworn on 26 June 2014;
(4) An affidavit of Ms Vanessa Mouawad, solicitor for the plaintiff, sworn 26 June 2014 with some 196 pages of exhibited material;
(5) An affidavit of Ms Vanessa Mouawad, solicitor for the plaintiff, sworn 19 August 2014 and comprising some 55 pages;
(6) Exhibit "A", comprising a certificate dated 8 October 2013 from the Claims and Assessment Resolution Service permitting a late claim: Exhibit "A";
(7) Exhibit "B", comprising a letter dated 29 November 2011, from the plaintiff's solicitor, Brydens to the solicitor for the defendants, Moray and Agnew: Exhibit "B".
Facts
On 26 August 2006, the plaintiff was injured in the subject accident. At that time, she was a passenger in a vehicle being driven by the first defendant on Bell's Line of Road at Bilpin, NSW.
The first defendant lost control of the vehicle thereby causing the vehicle to leave the road and collide with a roadside tree. Further examination of the facts is unnecessary for present purposes. The time by which the plaintiff was required to notify the insurer of that claim was 6 months after that date, namely 26 February 2007.
The plaintiff was born in 1985 and she was aged 21 years when she was injured.
Events occurring prior to plaintiff seeking legal advice
In the subject accident, the plaintiff sustained a serious comminuted fracture to her right upper arm. She was unconscious for a short time. Police and an ambulance attended the scene. She was found to have sustained an open fracture of the distal end of the humerus, a radial nerve injury and related soft tissue injuries. She almost lost her right arm in the accident. This required open reduction and internal fixation, through several episodes of surgery. She also sustained soft tissue injuries to her neck, right shoulder and her lower back.
The first defendant also suffered injuries that were more serious than those suffered by the plaintiff, including fractures of the thoracic spine at the levels T8, T10 and T11.
Those events caused the plaintiff to suffer considerable personal turmoil, which required her to devote considerable personal energy and focus on pursuing her recovery from her injuries. In those events she was not thinking about making a claim for compensation. Those circumstances included her considerable commitment to assisting the first defendant in managing the consequences of his injuries, in addition to managing her own needs and circumstances. In that time the plaintiff and the first defendant had entered into a relationship which subsisted until August 2012.
In the months that followed the accident, the first defendant took the course of frequently apologising to the plaintiff for the accident. Clearly, he was feeling guilty about the accident. She had become emotionally attached to him. She did not consider lodging a claim for damages for her injuries, although she knew he had been at fault.
Initially, the plaintiff was in ignorance of the applicable statutory time limits for the pursuit of her legal entitlement to make a claim in respect of the subject accident. She had no experience or knowledge of such matters. There had been no experience of such matters in her family. She was not required to give evidence in the proceedings that had been brought against the first defendant by the police.
At about six months post-injury, the plaintiff realised that the injury to her right arm was not improving, and she returned to see her orthopaedic surgeon, who then reviewed the progress of her injuries at regular intervals. In those events she was having financial and work pressures and did not think of making a claim.
After about 12 months post-accident, the plaintiff became concerned that her injuries were not healing, and she then sought an opinion from another orthopaedic surgeon who, on her understanding, had advised her she was suffering a non-union due to osteonecrosis at the former fracture site.
In September 2007, that second orthopaedic surgeon admitted the plaintiff to a private hospital for the insertion of a metal plate at the site of her united fracture. She subsequently underwent removal of some of that hardware and a bone graft was inserted in its place.
Initially, the plaintiff paid for all her medical, physiotherapy and chiropractic treatment from her own funds. By the time she was having the further surgery, her health insurer was paying for the majority of her treatment and the plaintiff made up the gap balance herself.
Despite those surgeries, the plaintiff continued to experience ongoing problems of pain, discomfort and restriction of movement of her right arm, and other problems regarding her neck, right shoulder and lower back.
Those events were causing her to become anxious about her future and in a discussion about this, the first defendant's mother suggested that she seek legal advice. Her partner then made enquiries in her area on her behalf to seek a solicitor in order to obtain advice as to her rights to make a claim for damages.
Shortly afterwards, she arranged to see Mr Andrew Bell of Bell Lawyers on either 10 or 11 November 2008. At that time, the 6 month time requirement for notifying the insurer of the claim had passed 9 moths beforehand, although the 3 year limitation period had not yet arisen.
Events occurring on the watch of former solicitor
The plaintiff first consulted a lawyer, Mr Bell, to seek advice on the pursuit of the present claim. The plaintiff said, and I accept, that she was confused by Mr Bell's advice. She had left the pursuit of her claim in the hands of his firm. The plaintiff complied with whatever requirements Mr Bell had of her with regard to the pursuit of her claim.
Mr Bell advised the plaintiff of the existence of the requirement that a claim be notified within 6 months. She had not known of that requirement beforehand. By the time this occurred, that time had long since passed.
It was not until 7 April 2009 that the plaintiff signed a statutory declaration and claim form in accordance with the advice of her solicitor. That claim was lodged on her behalf on or about 21 April 2009 in the expectation of making a late claim.
The plaintiff was told by her then solicitors that some delays had been experienced in completing a required medical certificate that was to accompany her claim form. The plaintiff is a person whose habit was to promptly complete paperwork when required. I accept that she attended to all such requests when made of her by her former solicitor.
The plaintiff was asked by Mr Bell to complete a statutory declaration to enable her claim to proceed. She said she was advised that once this had been completed, her claim would be accepted and then there would be settlement discussions. She obliged, but over the course of time she realised that expectation was not met.
On 5 May 2009, the plaintiff was asked to sign some medical authorities. She attended a medical examination appointed by the CTP insurer. In the interim she spoke to Mr Bell from time to time to enquire of the progress of her claim. Towards the end of 2011 she became concerned at the lack of progress of her claim and she began to doubt the advice she was being given to the effect "nothing was going to happen overnight".
In late 2011, the plaintiff saw a Brydens stall in a shopping centre and took the opportunity to seek a further legal opinion. Following this, she then changed solicitors and consulted Brydens, her present solicitors. Until that time, she had believed that all the procedural requirements for the advancement of her claim had been met, and that her claim had been progressing.
Assuming the plaintiff had leave to proceed at that time, the last date for the commencement of proceedings in respect of her present claim was 26 August 2009. That time passed without a claim being filed.
In considering the above factual summary, it must be borne in mind that there was no evidence from either Mr Bell, nor anyone from his firm concerning those events.
Events occurring on the watch of present solicitor
On 24 November 2011, the plaintiff conferred with her present solicitors, who sent her a conditional fee agreement on 29 November 2011.
Soon after being retained, Brydens requested Mr Bell's file relating to the plaintiff's claim. There was a delay in Brydens obtaining the former solicitor's file, which was eventually received on 3 February 2012. Thereafter, correspondence ensued with NRMA but an impasse was reached on a requested acceptance of the plaintiff's late claim.
After the plaintiff's present solicitors obtained and examined the former solicitor's file relating to her claim, the plaintiff was told her Personal Injury Claim Form had been left in an incomplete state when it was forwarded to NRMA. She had been unaware that it did not include a required medical certificate.
In August 2012, the plaintiff's present solicitors arranged for the plaintiff to attend a conference with counsel. The plaintiff was then asked to provide details of what she could recall concerning advice she had received from Mr Bell's firm because she had to provide an explanation for the delay.
The plaintiff said, and I accept, that she found that task too difficult because she could not recall conversations in sufficient detail to provide such details. All she could recall was that she had to complete a claim form, which she thought had occurred, that she would have to explain the delay and attend medical examinations, and that she had done so, and that the claim would take some time to progress, and a settlement offer would be made at some stage.
Clearly, the plaintiff had a very limited understanding of what was involved and what was required for her claim to be properly pursued. She was reliant upon professional advice for such matters.
The affidavit of Ms Mouawad sworn 27 June 2014 shows that from 1 February 2012 onwards, the plaintiff's present solicitors corresponded with NRMA and provided documents and material in an endeavour to advance the plaintiff's claim.
Unfortunately, during that time there were personnel changes in the office of the plaintiff's present solicitors such that there was no continuity of handling of the plaintiff's file. Accordingly some further delays were incurred. This came to the attention of the principal of the firm, Mr Hagipantelis, on 12 February 2013, at which time correspondence with the insurer was taken up again. Work then commenced on preparing statutory declarations from the plaintiff and the solicitors who had been responsible for the progress of her file in the firm. Those materials were forwarded to the insurer in the hope of advancing the matter.
On 21 May 2013, despite that re-invigorated correspondence, NRMA rejected the plaintiff's late claim.
On 8 October 2013, the Claims Assessment and Resolution Service issued a certificate permitting the plaintiff to make a late claim pursuant to s 73 of the MAC Act.
On 6 December 2013, after further correspondence with the insurer, NRMA advised the plaintiff's solicitor that it maintained the view the plaintiff's late claim could not be made, and in doing so, it rejected the findings of the Motor Accident Authority.
That correspondence led to the institution of the present proceedings on 11 March 2014. The defendants then retained Messrs Moray & Agnew to represent them. The motion by the defendants seeking to have the plaintiff's claim dismissed was then filed on 7 May 2014.
A review of the emails, file notes and correspondence annexed to the affidavit of Ms Mouawad sworn on 19 August 2014 does not suggest any of the delays that were incurred in this case, were due to dilatoriness on the part of the plaintiff.
Assessment of effects of injuries
The most recent medical opinion on the condition of the plaintiff's right arm was from Dr FJ Harvey, a consultant orthopaedic surgeon retained by the defendant's insurer.
The plaintiff's continuing problems as noted by Dr Harvey included a concern over the increasing prominence of the remaining indwelling hardware in her right arm, and the need to frequently take weekly medication for pain relief.
The plaintiff had left her pre-accident employment as a veterinary nurse in part because of problems she had been experiencing in her right arm.
Dr Harvey noted the plaintiff's ongoing complaints of pain in her lower back, her thoracic area, and in her neck. She experiences problems sitting for prolonged periods, including whilst driving. Her lower back pain becomes aggravated when engaging in lifting activities. She complains of occasional pain in her right shoulder, which is an improvement from how it was initially.
The plaintiff is at risk of a further fracture above the site of the remaining fixation plate in her right arm, which because of its location and scarring exposes her to the risk of a serious nerve injury if the plate has to be removed in the future.
There is 1cm wasting of the muscles of the right arm. There is palpable crepitus in the region of the indwelling hardware. The plaintiff is sensitive about the obvious appearance of the 25cm scarring on her right upper arm. She has become introspective about the condition of her lower back.
Although the plaintiff had an inter-current back injury when she fell from a horse on 4 May 2009, Dr Harvey's report suggests the resultant problems from that injury were only temporary in nature.
Issue 1 - Whether the plaintiff's explanation is "full"
The plaintiff must supply a full explanation of the reasons why her claim was late: s 72(1) of the MAC Act. For that explanation to be full, it need not involve a recitation of all the minutiae of the time that has passed, but it should cover the entire period of the delay: Walker v Howard [2009] NSWCA 408.
In my view, the plaintiff's explanation that she initially experienced delay in pursuing her claim due to the effect the injuries had upon her, and because she was ignorant of the legal requirements for making such claims, is a sufficiently full explanation for the delay that occurred to the point where she instructed her solicitors to act in her interests.
The delays that were incurred from that point until the time the plaintiff filed her statement of claim on 11 March 2014 are in my view fully explained by the meandering course her matter took whilst in the hands of her respective solicitors, during which time she had understood, wrongly, and innocently, that her claim was being progressed when it was not.
Once the plaintiff began to suspect that her first solicitor was not progressing her claim, she changed solicitors. Her claim was then filed, albeit not without further delays, but these have been fully explained by Ms Mouawad.
In my view, those explanations are sufficiently full to satisfy the first limb of the requirements of s 72(1) of the MAC Act.
The defendants criticised the fullness of the plaintiff's explanation absent any material from her former solicitor: Nominal Defendant v Browne [2013] NSWCA 197. In my view the absence of information from the former solicitor was in this case superfluous. It is difficult to see what if anything that solicitor could say other than that the claim was a late claim when he took instructions, and on his watch, the 3 year limitation period had passed, during which time, unbeknown to the plaintiff, there was non-compliance with the legal formalities for advancing a claim.
Issue 2 - Whether the plaintiff's explanation is "satisfactory"
Having regard to the chronology of events set out in my findings of fact at paragraphs [20] to [63] above, I consider that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay as the plaintiff has experienced in this matter: s 66(2) of the MAC Act.
My reasons for that view are that the plaintiff was ignorant of the requirements for making a claim until she went to see her first solicitor, and thereafter, the delays incurred were not of her making. Furthermore, once she became concerned, she took prompt steps to change her legal representation. Until then, she was substantially preoccupied with coping with her difficult position, which involved her own recuperation, assisting the first defendant with his recuperation, and dealing with the emotional issues that surrounded those circumstances. In my view, in light of those circumstances, it is an overstatement to argue, as the defendants have in this case, that the plaintiff made a conscious decision not to seek legal advice beforehand.
Issue 3 - Whether damages are likely to exceed $87,750
At present there is no MAS certificate so it is difficult to determine whether the opinion of Dr Harvey to the effect that there is only a 2 per cent whole person impairment is likely to prevail over Dr Conrad's 2012 opinion to the effect that such impairment should be assessed at 8 per cent whole person impairment. In my view, both of those opinions are not definitive of the issue.
At a trial the differing opinions of Dr Conrad and Dr Harvey on the plaintiff's need for domestic assistance and an allowance for an economic buffer require reconciliation, probably on updated opinions by then.
In the present context, where an estimation of the likely damages is required, rather than a precisely formulated finding, irrespective of whether an entitlement can be shown for damages for non-economic loss, my impression of the plaintiff's complaints as described in the medical evidence is that these complaints support a claim for the award of a significant economic buffer along the lines explained in State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536.
The claim for out-of-pocket expenses is not identified, but it can reasonably be inferred that it will be substantial as it involves several periods of hospitalisation for surgery, including in a private hospital.
Furthermore, on the evidence based on Dr Conrad's analysis, which seems reasonable, I consider that there is a strong likelihood of the plaintiff making out claims for future domestic assistance, as well as damages for future treatment expenses.
In those circumstances, for present purposes, I consider that in aggregate, such damages, aside from non-economic loss, have a real chance or likelihood of comfortably exceeding the threshold sum of $87,750.
Issue 4 - Whether prejudice is shown
The defendants have argued that they have been prejudiced by the delay. I do not accept that submission.
Whilst there is presumptive prejudice in all litigation, no significant or real prejudice has been demonstrated: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.
The points of prejudice relied upon by the defendants in this case are commonly encountered in personal injury litigation. However, these do not amount to significant prejudice. The insurer has access to the first defendant for the purpose of a liability investigation. There is no real liability issue to investigate. The plaintiff's treatment has been documented and can be evaluated. The insurer has already availed itself of the opportunity to have the plaintiff medically examined. There is no indication that the plaintiff has failed to mitigate her damages, and there is no basis for assuming the insurer would have involved itself in the plaintiff's rehabilitation needs. There is no indication that there were such needs.
Disposition
The plaintiff has made out her claim for the relief that she has claimed. I therefore find that the defendants have failed to demonstrate an entitlement to a dismissal of the claim brought by the plaintiff.
Costs
The defendants submitted that the plaintiff should pay the costs of the motions on the basis that the procedural defaults for which facilitative orders were sought involved indulgence that should incur costs.
At the hearing on 15 August 2014, it was indicated that the appropriate order for costs would be considered after the respective motions had been determined. I will therefore hear the parties on costs at a suitable time appointed for that purpose, if in the meantime they cannot reach agreement on the appropriate orders for costs.
Orders
I make the following orders:
(1) The notice of motion filed by the defendants on 7 May 2014 is dismissed;
(2) In respect of the notice of motion filed by the plaintiff on 21 May 2014, pursuant to s 73(1) and s 109(3) of the Motor Accidents Compensation Act 1999, the time for the plaintiff to file her statement of claim arising from the accident on 26 August 2006 is extended to 11 March 2014;
(3) I will hear the parties on the appropriate order for costs in relation to both notices of motion;
(4) The exhibits may be returned;
(5) Liberty to apply on 7 days notice if further or other orders are required.
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Decision last updated: 19 December 2014
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