Wit v Park

[2015] NSWDC 135

District Court

New South Wales

Medium Neutral Citation:	Wit v Park & Anor [2015] NSWDC 135
Hearing dates:	10 February 2015
Date of orders:	10 February 2015
Decision date:	10 February 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Motion dismissed  Plaintiff to pay defendants’ costs
Catchwords:	MOTOR ACCIDENTS COMPENSATION – Application for dismissal for delay – Whether full and satisfactory explanation for delay
Legislation Cited:	Motor Accidents Compensation Act 1999
Category:	Procedural and other rulings
Parties:	Rolf Gunter Wit (Plaintiff) Jeong Ae Park (First Defendant) Kyu In Lee (Second Defendant)
Representation:	Counsel: Mr T Meakes (Plaintiff) Mr J Sewell (Defendants)   Solicitors: Gorman Jones Lawyers (Plaintiff) QBE In House Legal (Defendants)
File Number(s):	2014/212668
Publication restriction:	No

Judgment

1. HIS HONOUR: At about 1.20 am on 2 November 2011 there was a collision between the plaintiff, who was a pedestrian, and a motor vehicle owned by the first defendant and driven by the second defendant. The plaintiff received personal injury. A description of the event given in the COPS event printed out on 10 May 2013 is this:

"About 1.20 am on 02/11/11, the pedestrian [,] a traffic controller on the worksite at Underwood Road [near the intersection of] Pomeroy Avenue, Homebush [,] was walking south on the eastern nature strip of the Underwood Road toward Pomeroy Avenue. Due to roadworks currently underway, half the roadway was closed and traffic was being controlled by traffic controllers at either end of the construction zone.

Vehicle 2 was directed south through the construction area by the controller at the north end. Pedestrian glanced over his shoulder and believed the road to be clear and stepped into the roadway. The near side mirror of vehicle 2 collided with the pedestrian causing him to deflect off the road and into a tree adjacent to the road before falling down and striking the eastern kerb of Underwood Road. The pedestrian remained conscious.

Driver [of vehicle] 2 stopped and rendered aid, as did other workers at the site. A short time later, an ambulance arrived and treated the pedestrian before conveying him to Westmead Hospital for observation and treatment of any possible injuries."

The only thing that should be added to that description is that the plaintiff in his affidavits attests to the fact that he had only put one foot into the gutter of Underwood Road, Homebush, and that is consistent with the diagram made by the police at the time which is part of exhibit G-G.

2. On 18 July 2014, within the three-year limitation period, the plaintiff commenced proceedings in this Court seeking damages under the Motor Accidents Compensation Act 1999. The defendant now moves the court for dismissal of the statement of claim pursuant to s 73(7) of the Motor Accidents Compensation Act 1999 ["MACA"]. There is no dispute that the plaintiff made a late claim for motor accidents damages. Under s 72(1) of MACA a claim must be made within six months after the relevant date for the claim. The relevant date for the plaintiff's claim is the date of the motor vehicle accident in question, 2 November 2011. The plaintiff was required to make a claim on or before 2 May 2012. However, his claim for MACA damages was only delivered on 20 May 2013 over one year after the six months expired.

3. Under s 73(5) of MACA if court proceedings are commenced on a late claim the insurer of the defendants may apply to the court to have proceedings dismissed on the ground of delay. Section 73(7) provides this:

"On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for delay in making the claim."

What is a "full and satisfactory explanation for delay" is provided for in s 66(2) of MACA. It is in these terms:

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

4. The plaintiff's injuries arose out of and in the course of his employment with Dolphin Traffic and Security Australia. The plaintiff was employed by that company as a supervisor and team leader. Immediately prior to the accident he had just finished relieving a person who was performing duties as a traffic controller, whom he had allowed to go for a meal break, and the plaintiff was on his way back to the worksite to relieve a second traffic controller when the accident occurred. The workers' compensation insurer of the plaintiff's employer was QBE Workers' Compensation (NSW) Limited. The insurer of the defendants is QBE Insurance Limited. However, I accept that there are glass walls between the two companies in question, even though they are related. The police were called to the scene of the accident, as was an ambulance. The plaintiff was taken by ambulance to the Westmead Hospital where he was a patient for, he tells me, 11 days. The paperwork before me indicates that he was discharged on either 12 November or 13 November 2011. The first date is given in the plaintiff's MACA claim form and the second date is given in a letter of particulars provided by the plaintiff's solicitor to the defendant's solicitor on 17 July 2014.

5. After discharge from the hospital the plaintiff attended upon his general practitioner, Dr Patel, at Merrylands. Dr Patel's certificate, which is annexed to the plaintiff's MACA claim form indicates that he saw the plaintiff on 11 November 2011. Clearly, there is some confusion about when the plaintiff was actually discharged from the hospital and when the plaintiff actually first saw his general practitioner. However, the confusion is but a matter of a few days. Nothing turns on that.

6. Whilst the plaintiff was still in Westmead Hospital he was visited by his employer, or perhaps the principal of the company which employed him. The plaintiff inquired of his employer about lodging a claim form for compensation. The plaintiff was told by his employer not to worry about putting in a claim as he was getting compensation anyway and there was no need to put in a claim. It is clear to me that the employer was referring to a workers' compensation claim and at the time that the plaintiff made the inquiry he did not know the difference between a claim for statutory workers' compensation and a claim for damages under MACA.

7. It is important to note that the plaintiff was paid wages whilst he was off work and that his treatment expenses were paid by QBE Workers' Compensation (NSW) Limited. Often persons injured in motor vehicle accidents do not have another source of benefits to apply for and if wages are being paid and treatment expenses are being paid the need to make inquiries on an urgent basis about a MACA claim evaporates.

8. The plaintiff returned to work on light duties in either late December 2011 or early January 2012. On 5 February 2012 he was certified as fit for his normal duties. On or shortly before 11 April 2012 the plaintiff was woken from his sleep by sudden pain in the left side of his chest. I should have indicated earlier that the plaintiff sustained severe, multiple rib fractures on the left side and also an injury to his left knee and spinal injuries. Following upon his waking with a sudden pain in his left chest the plaintiff again consulted his general practitioner who sent him for an X-ray of his chest and ribs which was carried out on 11 April 2012. Dr Patel again commenced to certify the plaintiff as unfit for work. On 6 April 2012 a CAT scan was made of the plaintiff's chest. That detected fractures of two ribs which had not previously been thought to be fractured. The ribs numbered 4 to 9 had not reunited according to that CT scan. The plaintiff was then referred for physiotherapy. He was also sent to see a specialist, Dr Lim, at a bone and joint clinic in North Parramatta. I do not know the date on which the plaintiff consulted Dr Lim. All I do know that it occurred in May 2012. As I have earlier mentioned, the claim form under MACA was due to have been lodged on 2 May 2012.

9. According to a statement made by the plaintiff on 29 July 2012 Dr Lim advised the plaintiff that he was suffering from a vitamin D deficiency and prescribed appropriate vitamin treatment. On 29 May 2012 the plaintiff underwent bone mineral density testing at North Parramatta, as a result of which the plaintiff was diagnosed as having osteopenia in both his knee and in one of his femurs. I do not know which femur was involved. It can be seen therefore that in May 2012 the plaintiff was off work, certified unfit for work, and was undergoing active treatment.

10. At home one evening the plaintiff saw on television an advertisement about the Australian Injury Help Line which was no doubt advising injured persons of their entitlement to seek advice and assistance in order to obtain compensation in one form or another. Initially, the plaintiff thought this occurred in September 2012 but in cross-examination conceded, when shown documentation, that it was likely to have been in late May 2012.On 5 June 2012, as a result of his contact to the Australian Injury Help Line, the plaintiff saw a solicitor, Mr Andrew Bell.

11. Before discussing the conference that the plaintiff had with Mr Bell on 5 June 2012, I should comment upon what occurred when the plaintiff rang the Australian Injury Help Line. In [26] of his statement of 29 July 2013 the plaintiff said this:

"I rang the Australian Injury Help Line and inquired if I was able to claim compensation for loss of wages, and also inquired about personal injury claims in motor accident proceedings. It was then explained to me what the procedure was. I was asked by the help line worker as to why I had not made a claim before. I explained to them that my employer at the time of the injury said to me words to the effect:

"I should not bother to put in a claim. You are getting compensation and there's no need to put in a claim."

I was then advised by the help line worker that I was misled by my employer, that I had to get my claim in as soon as possible, and that they would provide me with a name of a solicitor who could take care of my motor accident claim. About a week later I was provided with the name of Andrew Bell of Bell Lawyers. I arranged for a meeting with Mr Bell."

It is clear from what the plaintiff said in his evidence today that this was the first time that he became aware of a difference between a workers' compensation claim and a MACA claim.

12. Exhibit C-C contains conference notes made by Mr Bell after the interview on 5 June 2012. The final part of the file note is this:

"The preliminary advice provided was Workers' Compensation claim is being covered and income support will not be paid after 2 November 12 but medical coverage would continue.

Advised the third party scheme is fault-based and he has to prove the car caused the accident. Rolf confirmed he had not sought legal advice before today. I said we need to ascertain whether there is a basis for making a claim by getting a copy of the Police documents, investigations, other statements and any witness statements and his statement and then we can provide further advice.

Advised normally you have to make a claim within six months and he was outside that time already. I said once we have obtained the Police accident investigation documents I will meet with him again and we will go through it and decide whether we will lodge a claim form. I said I didn't see any problem if the claim form is lodged a few months out of time and we have to provide an explanation as to why this has occurred.

What we need to do is make application for a copy of all documentation from the Police concerning their investigation of this accident. Advised Rolf as soon as I obtained this information I will contact him again.

Rolf left me with all medical certificates, QBE correspondence, payroll records and return-to-work plans."

13. A few things should be fleshed out from what I have just quoted. At the time of the plaintiff's accident he was 66 years of age. Under the then applicable workers' compensation legislation he was only entitled to compensation for one year from the date of the motor vehicle accident. However, the legislation then permitted the payment of out-of-pocket expenses under s 60 of the Workers' Compensation Act 1987 despite the cessation of the weekly payments. However, the law has been subsequently changed. Clearly, the reference to "QBE correspondence" is a reference to correspondence with QBE Workers' Compensation (NSW) Limited and not with QBE Insurance Limited.

14. Mr Bell appears not to have acted with promptness. Over six weeks later he wrote to the plaintiff asking him to sign and return an application to the NSW Police for information which it had concerning the accident. The plaintiff was also asked to provide a photocopy of his driver's licence as that needed to be submitted with the form. Eventually, on 26 October 2012 Mr Bell provided the plaintiff with the information that he had received from the NSW Police. That information is mainly that now contained in exhibit G-G. In the same letter the plaintiff was asked to arrange an appointment to meet with Mr Bell to discuss the documents obtained from the police and about the future conduct and management of the his claim.

15. A conference was appointed and held on 13 November 2012. It was pointed out to the plaintiff that the police formed the view that the plaintiff himself was responsible for the collision. The plaintiff was advised that he could win the case or he could lose the case and the third option, "the more likely scenario", is that there would be some apportionment of responsibility between the driver of the vehicle and the plaintiff because of the plaintiff's failure to keep a proper lookout. In other words, Mr Bell formed the view that the probability was that the current second defendant would be held to have been in breach of her duty of care to the plaintiff, but the plaintiff himself was guilty of contributory negligence. However, Mr Bell then pointed out to the plaintiff that there was a "real prospect" that the discount for his contributory negligence could be more than 50 per cent. Certain aspects of the plaintiff's case were then drawn to his attention, such as his age and the need to prove that he would have continued to work beyond the age of 66, in any event, to obtain an award for loss of wages and future economic loss. The conference notes conclude thus:

"Concluded the conference by saying I will review all the documentation and notes about discussions and provide an advice to address the real question which is, is it financially worth your while to proceed. If you want to proceed there is need to work out the real benefit and what the cost is and also complete the claim form because we have to lodge an explanation for being out of time but I don't see that as a problem.

I said to Rolf I will get the letter of advice to him within two weeks but hopefully shorter. Given I've been away for six weeks I have a lot of projects to catch up with."

16. Mr Bell sent a letter of advice to the plaintiff on 22 November 2012. It discusses a large number of things and pointed out that there was a number of reasons why the pursuit of motor accident claim might not be financially advantageous to the plaintiff. He pointed out that disbursements alone could amount to some $3200 and although Mr Bell's firm would provide its time on a "no-win, no-pay" basis they could not bear the out-of-pocket expenses which would have to be paid by the plaintiff himself in the event that they were not recovered from the potential defendants. It was also pointed out that the plaintiff's solicitor would be required to certify that there were reasonable prospects of success and he would be reluctant to do so because it might entitle any successful defendant to seek costs from the plaintiff's solicitor himself. It was also pointed out to the plaintiff that if he lost the MACA claim he would have to pay the defendant's costs which "would be at least $15,000 to $18,000". The letter ended thus:

"If you wish to proceed with the claim we will need to sit down, identify what the potential benefit is and the likely costs that are involved.

If we do not hear from you within three weeks, we would assume you no longer wish to proceed with the claim."

17. The plaintiff swore on oath that he did not receive that letter. I accept his explanation. At the time there were thefts from mail-boxes in his residential area, Merrylands, thefts from mail-boxes by young people who were looking for overseas pension cheques and one might infer things such as credit cards that had been sent in the mail. The explanation which the plaintiff gave for not receiving the letter is a plausible one. I accept it.

18. The plaintiff did not, I infer, chase up Mr Bell for his written advice after the expiration of the two weeks of which he had been told in conference. I will come back to that issue. It is an important one. The next communication from Mr Bell to the plaintiff was a letter of 8 February 2013. Leaving aside the salutation and fairwell, the letter is this:

"We refer to our letter of 22 November 2012, a copy of which is enclosed for your ease of reference.

We have not received any further communication from you so we assumed you no longer wish to proceed with the inquiry.

We are writing to you because we understand you have recently been contacted by Mr Whelan who suggests you are of the understanding the matter is proceeding."

Mr Whelan, I am told without objection from the Bar table, is the principal of the Australian Injury Help Line. It is clear that Mr Whelan had been in contact with the plaintiff and the plaintiff told Mr Whelan that he thought Mr Bell was proceeding with his case and that Mr Whelan conveyed that information to Mr Bell. In other words, the plaintiff had not been chasing up Mr Bell but the person who referred him to Mr Bell, Mr Whelan of the Australian Injury Help Line.

19. The plaintiff told me that the copy of the letter of 22 November 2012 was not annexed to the letter of 8 February 2013. I accept that that was the position. The reasons for that are shortly these. Mr Wit had a distinct recollection that the letter 8 February 2013 was of one page only. The letter of 22 November 2012 is three pages in length, so that if it were annexed to the letter of 8 February 2013 that communication would have been of four pages. The next point is that the plaintiff told me that his wife said something to him. Clearly, I infer from what he said that there was no annexure and the plaintiff told me that he told his wife that he would have to get in contact with Mr Bell to get a copy of it. Unfortunately, it does not appear that the plaintiff did so.

20. There are two further pieces of information from Mr Bell's file. The first is a conference note of 20 February 2013. It commences with a mention of a telephone attendance upon the plaintiff following a discussion on 19 February 2013 about his instructing Bryan Gorman and Company. According to the "conference notes", which is really only a file note, a gentleman answered the telephone and said that the plaintiff was at work. Mr Bell left a message with that gentleman to advise that he had rung the plaintiff. An inference to be drawn is that the gentleman who answered the telephone was perhaps the plaintiff's son or son-in-law. However, it is clear that by mid-February 2013 the plaintiff was thinking of instructing the firm now known as Gorman Jones Lawyers to act for him. The final communication from Mr Bell to the plaintiff is a letter dated 19 March 2013. The substance of the letter is this:

"The last time I spoke to you I indicated I needed to check with management of Australian Injury Help Line about whether we were entitled to discuss the matter further with you in a face-to-face conference.

When we last spoke you advised I had your mobile phone number but unfortunately I did not. I rang your home the following day and was told by the gentleman who answered the phone you were at work. I left my name and asked could a message be given to you I had telephoned.

I was pleased you had been given the opportunity of finding some work and recognised things have been a bit tough of late.

The Australian Injury Help Line indicated they prefer you speak to Mr Gorman about your compensation inquiry. In the circumstances I am not able to advance your inquiry any further for the reasons which I provided to you in my comprehensive letter of 22 November 2012."

The inference I draw is that the second paragraph of that letter refers to what I would categorise as the file note of 20 February 2013. Clearly, in light of a mention of the plaintiff's instructing Gorman Jones Lawyers, Mr Bell was concerned as to whether he should have a conference with the plaintiff and therefore his approach to the Australian Injury Help Line.

21. The plaintiff saw Mr Dean Jones of Messrs Gorman and Jones Lawyers on 11 April 2013. That led to the claim form of 20 May 2013 being delivered to QBE Insurance Limited. There is no submission made that there was any relevant delay between 11 April 2013 and 20 May 2013.

22. It has to be borne in mind that other things were happening in 2012 which affected the plaintiff after his initial consultation with Mr Bell. On 15 June 2012 the plaintiff had returned to work doing restricted duties. In September 2012 the workers' compensation insurer stopped paying for the physiotherapy in which the plaintiff was still undergoing. On 2 October 2012 further X-rays were made of the plaintiff's chest and left knee. According to the plaintiff's statement of 29 July 2013 those investigations indicated that there was ununited fractures of the seventh and eighth ribs on the left-hand side and some degenerative changes in the plaintiff's left knee.   

23. On 9 November 2012, four days before the plaintiff saw Mr Bell for the second time; the plaintiff was certified as being fit for his normal duties. On 16 November 2012, three days after the plaintiff's second conference with Mr Bell, the plaintiff's services were terminated by his employer. One can therefore see the difficulties upon which the plaintiff was labouring in late 2012 and the significance of the plaintiff’s obtaining work in early 2013.

24. The plaintiff clearly had ongoing problems with his left knee and eventually underwent a total left knee replacement on 22 February 2014 at the Campbelltown Private Hospital under Dr Dave.

25. The thrust of the submission put to me by the defendant, the applicant on the motion, are that plaintiff ought to have chased up Mr Bell for the letter which Mr Bell had promised the plaintiff at the conference on 13 November 2012, a letter that was promised to him within two weeks. He did nothing on the evidence that I can accept until receiving Mr Bell's letter of 8 February 2013, over 12 weeks later. Even then the letter of 8 February 2013 did not contain a copy of the letter of 22 November 2012 which the plaintiff had not received and the plaintiff himself suggested to his wife that he should obtain a copy of it, but there was no evidence that he did so. However, there is evidence in both the plaintiff's affidavit, exhibit A-A, and in his statement of 29 July 2013, which is exhibit F-F, and in the plaintiff's oral evidence today that he made numerous attempts between 8 February 2013 to contact Mr Bell without success, both by telephone calls and by calling at his office, and that eventually led to his seeing Mr Jones at Gorman Jones Lawyers.

26. The thrust of the defendant's submission is that there is no adequate explanation for that delay and if there be an explanation for that delay it is not a satisfactory explanation unless a reasonable person in the position of the plaintiff would have failed to have complied with the duty to lodge the claim form or would have been justified in experiencing the same delay. In other words, that there was no objective, satisfactory explanation for the plaintiff's delay.

27. As I have mentioned earlier, the plaintiff was aged 66 at the time of the motor vehicle collision currently in question. In November 2012 he was 67. He is currently 69 and about to turn 70. His memory is clearly not the best. He conceded that. In his affidavit he sought to set out things as he remembered them, although his memory was clearly inadequate when one consulted the records made by Mr Bell. I accept that the plaintiff has a relatively poor memory and that may be the result of his age, and various medical conditions which he suffers, which include diabetes, a vitamin D deficiency, a cardiac condition for which he has been treated by a specialist cardiologist, and a pre-existing right knee condition which required total right knee replacement in 2004.

28. The plaintiff's work history is not in full before me, but I do know that in 2004 he was working for Ingham's, no doubt at their chicken processing plant or chicken abattoir, and I know of the work which he was doing at the time of the motor vehicle. Having heard and seen the plaintiff I do not believe him to be well-educated and he appears to have pursued manual occupations throughout his working career. I can accept therefore the plaintiff has real problems with his memory. No doubt he finds it difficult to remember things and no doubt he forgets things. Why did he not chase up Mr Bell after being promised a letter within two weeks of 13 November 2012? It may well be because he forgot about the conference. It was never mentioned in his affidavit or his statement of 29 July 2013 which sought to provide a full and satisfactory explanation for his delay in lodging his MACA claim form. When confronted with the records of Mr Bell's practice the plaintiff clearly tried to reconstruct what had occurred.

29. It is also clear from the plaintiff's dealings with Mr Bell about obtaining the police records that Mr Bell was tardy in both requesting the information and providing it to the plaintiff himself. It is also to be borne in mind that the plaintiff had his services terminated on 16 November 2012, which would have been a blow to his morale, amongst other things. Essentially, the plaintiff left it to his lawyer to do the right thing by him. Mr Bell was tardy. Mr Wit may have been reluctant to chase him up after two weeks and delayed into the New Year to do so. However, things certainly came to a head in early February 2013 with the intervention of Mr Whelan and suggestions that the plaintiff should seek advice from an alternative solicitor, namely Gorman Jones Lawyers.

30. I ask myself whether a person in the position of the plaintiff, given his experience of life, his medical conditions, his memory problems, his working history, and his complete unfamiliarity with the litigious process would be justified in experiencing the delay which he did. I answer that question affirmatively. It appears to me that people such as Mr Wit, given their life experience and background, would be reluctant to approach a professional, to "chase him up", as if he were merely a butcher or baker.

31. As I said, I accept the explanation is a satisfactory explanation and that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay as the plaintiff did. Accordingly, the plaintiff has provided a full and satisfactory explanation for the delay as required by s 73(1) of MACA and therefore I am not required under s 73(7) to dismiss the proceedings. Accordingly, the defendant's notice of motion filed on 19 August 2014 is dismissed.

32. The plaintiff also filed a notice of motion on 26 September 2014. The substantive prayer for relief was that the plaintiff be granted leave pursuant to s 73 to continue these proceedings. That motion is otiose. It may well have been that if the defendant had raised a defence under s 109 of MACA the plaintiff could have moved the Court nunc pro tunc for leave to commence the proceedings out of time. However, this was not an application under s 109. As the notice of motion is otiose, it is dismissed.    

33. The remaining question concerns costs. In essence, the full and satisfactory explanation for delay was only given today when the plaintiff swore exhibit C-C, an affidavit and by the production of the records of Mr Bell's practice and explaining the errors in his initial affidavit, exhibit A-A, and the errors in his statement of 29 July 2013 in which he sought to provide a full and satisfactory explanation for the delay. That further evidence was supplemented by his oral evidence given in the witness-box today. In the circumstances the plaintiff has obtained an indulgence from the Court. I believe it to be appropriate to order the plaintiff to pay the defendants’ costs of the defendants’ motion.

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Decision last updated: 27 July 2015