Aeiveri v Boland

Facts 3The plaintiff is aged 40 years. His first language is Kurdish. His second language is Persian. He emigrated from Iran in 1992 and eventually settled in Australia in 1994. He said he was not completely conversant in English and has to translate his thoughts back through his original languages when answering complex questions. He gave his evidence without the aid of an interpreter. There was no suggestion that he needed an interpreter. 4At about 7.40pm on Thursday 22 November 2007, the plaintiff was driving his motor vehicle along Amsterdam Road, Mt Druitt, at about 50kph. As he approached the driveway of premises at 43 Amsterdam Road, which was on the plaintiff's left, the defendant, who was the holder of a provisional licence, reversed her vehicle out of that driveway and across the plaintiff's path. 5This caused the plaintiff to take evasive action by instinctively steering his vehicle to his right. As he did so, his vehicle collided head-on with another vehicle being driven in the opposite direction to his vehicle. 6The plaintiff made a claim for workers' compensation in respect of his injuries and absences from work that followed the above collision. The workers' compensation insurer made payments to the plaintiff, and for his treatment expenses. However, in February 2011 the workers' compensation insurer declined to pay for the plaintiff's further psychological treatment. 7The plaintiff's injuries were essentially of a psychological nature but also involved his cervical and lumbar spines. The plaintiff's treatment was initially directed at psychological issues. He saw psychologists for treatment from February 2008 onwards. The plaintiff gave evidence that on 13 July 2012 he had undergone an operation to fuse portions of his lumbar spine. This is claimed to be due to the accident in question. No medical evidence is yet to hand to describe the nature or the extent of that surgery. 8In February 2011, after the workers' compensation insurer declined to pay for his ongoing treatment, the plaintiff was advised by his psychologist that he should seek legal advice. He then consulted his solicitor and on or about 28 February 2011 a personal injury claim form was signed by the plaintiff. It was then submitted to the insurer on 15 March 2011. 9On 2 May 2011, the CTP insurer requested a full and satisfactory explanation for the delay in lodgement of the claim form. On 2 May 2011 the insurer rejected the plaintiff's explanation. The plaintiff was retrenched from his employment on 6 May 2011. 10On 27 July 2011 the plaintiff swore a statutory declaration as to the delay, this was served by the plaintiff's solicitor on 29 July 2011. On 27 September 2009, on behalf of the CTP insurer, the solicitor for the defendant rejected the plaintiff's explanation for the delay. 11On 23 December 2011, the plaintiff swore a second statutory declaration as to the delay. On 11 January 2011, on behalf of the CTP insurer, the solicitor for the defendant rejected the plaintiff's further explanation for the delay. After filing other proceedings that had to be discontinued, on 5 June 2012, the plaintiff filed the present summons. 12I will refer to the relevant portions of the above documentation in addressing the issue of whether the plaintiff has provided a satisfactory explanation for the delay in commencing his proceedings.

Legislation 13This application is governed by s 109 of the Motor Accidents Compensation Act 1999 ["MAC Act"]. The relevant parts of that section are as follows: "109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person-the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. ..."

Submissions and Issues 14In anticipation of the hearing, the representatiives of each of the parties prepared outline written submissions canvassing a range of factors relevant to the exercise of the discretion required in this case. However, as the evidence unfolded, parts of those submissions became superfluous once the issues had been narrowed. 15At the conclusion of the evidence, the parties identified only two relevant remaining issues to be determined in this summons. The first was whether the plaintiff's explanation for the delay in commencing proceedings was satisfactory within the meaning of s 109(3)(a) of the Act (the fullness of the explanation having been accepted), and whether pursuant to s 109(3)(b) of the MAC Act. The second such issue was whether the plaintiff's entitlement to damages exceed the applicable threshold of $95,250. 16The defendant conceded that the relevant delay that required explanation was the delay that had been incurred up until the time the plaintiff received legal advice in February 2011. 17The defendant no longer relies on any arguments concerning actual or presumptive prejudice.

Consideration of Issue 1 - Has a satisfactory explanation been provided 18The defendant did not argue that the plaintiff's explanation for the delay was not a full explanation. Instead, the defendant argued that the plaintiff's explanation for the delay up to the time the plaintiff instructed his solicitor, was unsatisfactory. 19When analysed, the essence of the defendant's argument was that it was not credible that the plaintiff remained unaware of his rights to make a MAC Act claim. The defendant argued that since the plaintiff used the word "negligent" in a workers' compensation claim form, to express his opinion describing the defendant driver as being the person at fault, he must have been at that time aware of his right to sue. It is clear that the claim form where he expressed that opinion in fact required him to respond in those terms. 20The plaintiff explained that as English was his third language, he was not entirely familiar with it, and by his use of the word "negligent" intended to convey the meaning that the blame for the accident lay with the defendant and not with him. He was of the view that in the circumstances, it was the function of the investigating police officers to ascertain which driver had been at fault, and he did not consider the implications for civil liability in MAC Act proceedings when he filled out the workers' compensation claim form. Otherwise, as to the question of repairs for property damage, he considered that as he was fully insured, he did not need to be concerned with that issue. 21The plaintiff's explanation for the delay in instructing his solicitor was that he did not know he had a right to make a claim for damages. He claimed that whilst he was receiving workers' compensation benefits for his treatment expenses and still working in his pre-accident employment, he had not been made aware of a right to make a claim under the MAC Act scheme. 22He also claimed that he was first alerted to the potential to make a claim when his treating psychologist suggested he seek legal advice when the workers' compensation insurer stopped paying for his treatment. At that time he was also feeling under some financial pressure concerning the prospect of his continued employment, and thought he would lose his job because he had been taking time off work for treatment. He stated that this was only after he consulted his solicitor that he became aware, in February 2011 of his potential rights to claim damages under the MAC Act scheme. The defendant accepts there was no relevant delay requiring explanation after that time. 23I consider the plaintiff's explanations, as outlined above, to be honest and entirely credible, and I accept them as satisfactory explanations for the delay requiring explanation for the purposes of s 109 of the MAC Act. 24In coming to this view, I have considered the defendant's reliance on the decision in Figliuzzi v Yonan [2005] NSWCA 290 at [93] and [100]. In considering the expected behaviour of a reasonable person in that case, attention was focussed upon the fact that the plaintiff in that case had access to legal advice. I consider the plaintiff's situation in the present case to be very different and distinguishable. He was of limited proficiency in English, he had no immediate need to consult legal advice until February 2011 as he was having his expenses paid and was not losing income. As he was not losing money, on the standard of a reasonable person, he would not necessarily have been expected to turn his mind to seeking out legal advice on such matters: Tan v Basaga [2010] NSWSC 1143, at [34] to [35]. 25I therefore consider the plaintiff's explanation for the delay he had experienced to the point of seeking legal advice in February 2011, as a satisfactory explanation within the meaning of s 109 of the MAC Act.

Consideration of Issue 2 - Likely damages exceeding $95,250 26The affidavit of the plaintiff's solicitor sworn on 19 June 2012 had annexed to it a schedule of likely damages. That schedule had been prepared by counsel, Mr MJ Maxwell, on 19 June 2012. That schedule, which included amounts for past and future out-of-pocket expenses, economic loss, domestic assistance, totalled $569,113.15. 27The schedule did not include an amount on account of non-economic loss, as it has not yet been established whether the plaintiff's circumstances meet the impairment threshold required by s 131 of the MAC Act to enable an award to be made for non-economic loss. 28The parties are agreed that under s 109(3)(b) of the Act, the relevant threshold to be met for a likely damages award would be $95,250, this being 25 per cent of $381,000, that figure being the maximum award available under s 134 of the MAC Act as at 22 November 2007. 29On behalf of the plaintiff, it was submitted that a likely award of damages in his favour would comfortably exceed $95,250. 30In contrast, on behalf of the defendant, it was submitted that whilst the plaintiff may have a theoretical entitlement to an award of damages of the order of $569,000, after deductions for claimed difficulties regarding the causation of his need for spinal fusion surgery, and for alleged contributory negligence, the plaintiff's likely damages would not exceed $95,250. 31I do not accept the defendant's submission for two reasons. First, the defendant's causation argument is speculative and not based on relevant evidence. It was based on medico-legal argument advanced through the orthopaedic opinion given by Dr O'Neill, a non-treating doctor, on 7 February 2012, which was provided before the plaintiff's spinal fusion surgery took place. Secondly, on the facts of the accident in this case, even after allowing for a range of possible views on liability, I consider it to be very unlikely that the plaintiff would suffer any discount, or any significant discount, from any assessed damages on account of alleged contributory negligence on his part. 32I am therefore satisfied the plaintiff is likely to recover a damages award in excess of $95,250.

Disposition 33Having concluded that the plaintiff has provided a full and satisfactory explanation for the delay in commencing proceedings as is required by s 109(3)(a) of the MAC Act, and as the plaintiff has provided evidence showing that it is likely he would be awarded damages in excess of $95,250, as is required by s 109(3)(b) of the MAC Act, it follows that the plaintiff has demonstrated that this is an appropriate case for granting the leave which he has sought.

Costs 34The plaintiff sought an order for his costs of the summons to be paid by the defendant on the basis that the defendant could have consented to the application, which was compelling, yet the defendant elected to have the plaintiff's application tested, as was its right. 35In contrast, the defendant submitted that the costs incurred by the plaintiff in pursuing leave to commence proceedings would have necessarily been required in any event as leave could only have been granted by the court, and therefore the plaintiff should bear the costs of obtaining the orders sought. I do not accept that argument in its entirety because if the parties had reached an agreement for leave to be granted, it would be almost inconceivable that a court would decline to make such an order on the known facts of this case. 36I therefore propose a hybrid course between the two submitted positions. As the plaintiff's claim for leave was a compelling one, but was one that nevertheless required the leave of the court in order for his claim to proceed, and as the defendant could have consented to the granting of such leave and consequential facilitative orders, I consider it is appropriate that the plaintiff should pay his own costs up to the filing of the summons on 5 June 2012, and that thereafter the defendant should pay the plaintiff's costs after 5 June 2012, those costs to be assessed on the ordinary basis.

Orders 37I make the following orders: (1) Pursuant to s 109 of the Motor Accidents Compensation Act 1999, leave is granted to the plaintiff to commence proceedings to claim damages for personal injury arising from his involvement in a motor vehicle accident on 22 November 2007; (2) The plaintiff is to pay his own costs incurred in the filing of this summons up to 5 June 2012; (3) The defendant is to pay the plaintiff's costs of the summons after 5 June 2012, on the ordinary basis; (4) The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2012