The principles to be applied - the fullness and satisfactoriness of the explanation
57I shall first detail with the concept of "full". In Mancini v Thompson [2002] NSWCA 38, Rolfe AJA at [46] explained this as follows:
"[46] ... What was required was a full explanation for delay and, in order for the explanation to be full, it had to include "the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation". In other words, the requirement that the explanation be full focussed upon the period from the date of the accident until the date of providing it, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant". The purpose of this is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant, therefore, cannot "pick and choose" the information to be given relevant to the delay and which the Court has to decide is "satisfactory"."
58In Laidlaw v Touma [2002] NSWCA 190 at [19] Stein JA explained the meaning of the word "full" as follows:
"[19] The word 'full' must be given some meaning and content. In its context in the Act, I think that it means complete - that is, that a complete explanation is required. This full explanation is of course necessary before one turns to consider whether it is a satisfactory explanation. Here, perhaps because the appellant's solicitors considered that delay had been explained to Judge Cooper, absolutely no explanation was given for the relevant delay. The affidavit of the opponent said nothing about it. The affidavit of the solicitor merely recited events and exhibited reports. The last event was Mr Taylor's report of 17 April 2001. Counsel for the opponent, Mr Colquhoun, submits that the court should somehow fill in the gaps and accept that matters were being attended to during the relevant period, such as consideration of the medical reports and taking instructions. If this be the case, it would have been simple to provide the explanation by evidence. At the hearing before Naughton DCJ, counsel for the defendant put the whole of the delay (from 9 January 1999 when the primary limitation period expired) in issue. The onus with respect to the full and satisfactory explanation for the delay lay with the opponent. Little or no effort was made to discharge it. Without any explanation for the delay between April 2000 and January 2001, the court was not in a position to consider whether the explanation was a full and satisfactory one."
59The explanation must cover the whole of the period of the delay: Russo v Aiello (2003) 215 CLR 643; Walker v Howard (2009) 78 NSWLR 161.
60The explanation in order to be "full" needs to set out fully the conduct including "the actions, knowledge and belief of the claimant". The explanation must be detailed (Ellis v Reko Pty Ltd [2010] NSWCA 319 at [19]-[22]). The focus of the procedure is to justify rather than excuse the conduct.
61However, the conduct in question needs to be seen in context. This means that the conduct in question is not confined to the claimant's own position or knowledge. For example in Diaz v Truong [2002] NSWCA 265, the plaintiff was a seriously injured minor and it was necessary for information from others to be provided.
62The central problem to be faced in many of these cases is how to explain being unaware of legal entitlements. While this was a straightforward matter where the plaintiff was a child, it is more difficult where the plaintiff is an adult, particularly if that adult has had tertiary education.
63The position of a claimant unaware of his or her legal entitlements was considered by the Court of Appeal in Figliuzzi v Yonan [2005] NSWCA 290. The plaintiff in those proceedings wrongly believed she only had a claim under the workers compensation legislation (for a similar case see Tan v Basaga). The Court of Appeal held, by majority, that a "full and satisfactory explanation" for the delay had not been provided. The plaintiff in Figliuzzi v Yonan was a clerk, and a reasonable person in her position, working in a legal environment, should have known, according to Tobias and McColl JJA, about her entitlements at common law as well.
64The New South Wales Court of Appeal made similar findings in the matter of Ellis v Reko Pty Ltd, even though the plaintiff was a workman injured in a forklift accident sought leave to bring proceedings out of time. Young JA noted the explanation (at [16]) as amounting to saying that "I'm a workman. I have limited education. I do not know the technicalities of the law. I had an accident. The insurance company knew I had an accident, knew how it happened. Surely that's enough."
65This was not enough for Young JA, with whom Beazley JA and Handley AJA agreed. In the present case, there is the additional problem, namely that the defendant did not know, and the plaintiff herself has, according to her doctor, "not much memory of the accident".
66This brings me to the question of what amounts to "satisfactory" in the event that the explanation is "full". This is what occurred in Tan v Basaga, where the plaintiff provided information which the insurer acknowledged was full, but where satisfactoriness was challenged.
67The plaintiff in Tan v Basaga, a medical practitioner who graduated from Sydney University with degrees in science and medicine, was not considered to fall within the same category as the appellant in Figliuzzi v Yonan. The checklist in relation to Dr Tan is of some assistance. These factors included:
(a)He was raised in a culture (Singapore) which did not observe litigiousness to any significant degree;
(b)He was working extremely long hours prior to the accident;
(c)He was initially optimistic as to the prospects of making a good recovery;
(d)During this period no one told him and it did not cross his mind that he might have a cause of action against the driver of the other car;
(e)He was so focussed on making a good recovery and earning a good income that, whether or not he heard or saw advertisements for legal services, he did not consider seeking advice;
(f)It was not until early 2007, two years after the accident, that he became concerned as to whether he would in fact make a good recovery;
(g)It was not until he heard an advertisement for Brydens that he considered he might have a claim; and
(h)That, upon turning his mind to those matters, he acted promptly.
68McCallum J found (at [34]) that the delay experienced by the plaintiff was a combination of his ignorance of the existence of a cause of action and the fact that his attention was focussed on recovering his health and pursuing his professional goals.
69In accepting the plaintiff's explanation, McCallum J considered that while the plaintiff was well-educated, he was relatively naïve. He had worked extremely long hours (both before and after the accident) and a reasonable person in that position could fail to turn his or her own mind to possible legal claims. I also note that the plaintiff had been driving to work when he had the accident, that he had been advised by his employer to lodge a workplace compensation claim, and that he did so. Furthermore, he acted promptly as soon as he was aware of his entitlement to sue.
70The plaintiff places considerable weight upon the decision of Tan v Basaga. However, questions of what amounts to "satisfactory", as with "full", tend to turn on their facts. In Diaz v Truong, where the plaintiff was a nine year old girl with brain damage, that level would have been a relatively low one (see Diaz v Truong at [92] per Hodgson JA). Similarly, in Walker v Howard, Allsop P considered a plaintiff who had suffered brain damage and was mentally impaired was in a different position to that of a mentally alert adult:
"[97] As I have already said in discussing the text of these provisions, the "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are."
71Young JA at [137]-[138] commented:
"[137] The basic problem with the second part of the MAC Act's requirement is what is meant by the position of the claimant. Does it mean that the hypothetical person must possess every characteristic of the claimant including the claimant's wealth or poverty, the assistance or non-assistance of friends and relatives, does it mean that all of what one might call the individualistic characteristics of a claimant must be ignored or does the court take account of some though not all of such characteristics?
[138] There would seem little argument that in this sense the physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. I consider that the cultural background of the claimant, at least within limits, is also transferred across. However, the difficulty I have is how far one transfers the circumstantial attributes. By "circumstantial attributes" I mean the fact at one end of the scale that the claimant is a minor aged 17 years who is a millionaire with the availability of both family and professional assistance and at the other end, a person who does not speak English, who is poor and friendless."
72In addition, where part of the delay occurs, as is the case here, after a solicitor has been retained, what view should the court take?
73In Smith v Grant (2006) 67 NSWLR 735 at [32], Basten JA explained:
"[32] This submission appeared to assume, perhaps unnecessarily, that the court would be required to make a judgment as to the solicitor's conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the "conduct, including the actions, knowledge and belief of the claimant", and not that of her solicitor. Nor should the two limbs of the definition contained in s 66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether "a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay". That would appear to view the matter from the position of the claimant, and not the claimant's solicitor. Accordingly, what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation."
74The plaintiff's explanation that in Ghana there is no equivalent scheme and she was not aware of her rights to bring proceedings is understandable, in circumstances where the existence of a nominal defendant is a concept which may not be readily understood by many people in Australia, including persons who have lived here all their lives. Even though the plaintiff paid comprehensive insurance and observed her husband making a claim, it is understandable that she would not have been aware of a body set up to deal with claims where the identity of the vehicle in question was unknown was in existence, and that she could make a claim to this body.
75I am satisfied that for the period up until the plaintiff consulted lawyers on 3 December 2009, the explanation is full and satisfactory. However, the explanation must cover the whole of the period, which means an explanation is required for the three month period from 3 December 2009 to 8 March 2010. While three months may not seem like a long period, it is nonetheless half of the six month period that a person is intending to make a claim is given. It is not a period of delay which should be regarded as of little importance, particularly as the plaintiff now knew her claim was late.
76The plaintiff's understanding as to her entitlement to claim was effectively resolved when she saw lawyers on 3 December 2009 and was told of her entitlements. She was told that she would need to bring a late claim and she would need to do it promptly. It is at this stage that the plaintiff's explanation ceases to be satisfactory.
77The claim form was filled in on 3 December 2009, to all intents and purposes with the correct address for the accident, and a medical certificate obtained on 4 December 2009 from the plaintiff's treating doctor. Why was this not sent straight away? According to the plaintiff's statutory declaration of 2 December 2010 at paragraph 33:
"33. On 3 December 2009 Colin Thompson completed the Personal Injury Claim Form based on my instructions and I then read and signed it. At that time I had noted the accident location as Elizabeth Street but I was unsure of the correct cross streets etc as I had been so dazed and confused after the accident. Colin Thompson provided me with a medical certificate to take to my GP for completion. I attended upon Dr Sidrak the following day and he completed the form. I then sent it back to P K Simpson & Co Solicitors."
78However, as Mr Ronzani pointed out in his submissions in reply, the claim form sent to the insurer could not be clearer. It identifies, correctly, the address where these events occurred. Was there an earlier, incorrectly filled-out form? If so, what address was given, and what did the diagram show? In a medical certficate prepared by Dr Chandra, he describes the plaintiff as being "hit by van while crossing Elizabeth Street in the City" (p 2 of the referral form dated 25 January 2010), suggesting Elizabeth Street had been the site nominated to him. If there is another form completed on 3 December 2009 showing another site for the accident, it is not available to me.
79Part of the delay is asserted to be the opening of the file and the Christmas period. According to Michelle Cheong's statutory declaration (Tab C to the Exhibit 1), "a file was opened on 21 December 2010 [sic]" (I note this should read 21 December 2009). This is different to the "16 December 2010 [sic - 2009]" date stated by the plaintiff in paragraph 34 of her statutory declaration of 2 December 2010. However, this does not explain why the form was not sent on 5 or 6 December 2009 to the defendant.
80The plaintiff's file was not looked at again by her solicitors until on 14 January 2010, when a number of letters were sent including a letter to New South Wales Police "requesting they advise as to whether there was a police report as the Claimant was not certain whether the police attended the scene or not". Unfortunately, neither that letter nor reply of 16 February 2010 has been able to be provided. According to paragraph 8 of the statutory declaration of Ms Cheong, a paralegal (Ms Jennifer Kyneur) reviewed the claim form and diagram and noted there was some confusion as to the site of the accident as "[a]t this time the claim form listed the accident site as Elizabeth Street". This suggests that the diagram drawn by the plaintiff was so obviously wrong that Ms Kyneur drew this to someone's attention. No documents have been produced to explain the nature of this confusion, or how Ms Kyneur worked out that the wrong site for the accident had been given.
81These are individually minor matters, but they are compounded by the plaintiff's own delay in responding to her solicitor's request for assistance. According to paragraph 9 of the statutory declaration which is Tab C, Ms Kyneur attempted to contact the plaintiff between 16 and 25 February 2010 "to no avail". According to the statutory declaration, it was after this that the plaintiff was contacted. However a letter was sent to the plaintiff on 16 February 2010 stating:
"We refer to your above matter and note that we have been trying to get in contact with you by telephone to no avail.
We need to get some further information from you in order to lodge your claim. Can you please contact Jennifer at our office on [phone number] as a matter of urgency." (Exhibit 4)
82This suggests that there had been unsuccessful attempts to get in touch with the plaintiff before 16 February 2010.
83Another letter was sent on 25 February 2010 (Exhibit 4) making an appointment for the plaintiff. It would appear that the plaintiff did not get in touch with the solicitors until 1 March 2010. The appointment of 4 March 2010 had already been made in the 25 February letter, without prior consultation.
84The plaintiff's explanation for this delay was firstly that she was very depressed by her injuries, and secondly that she thought all was well and she could leave matters in the hands of her solicitors.
85The plaintiff's solicitors were making efforts to contact her by phone and letter for almost a month. A reasonable person in the plaintiff's shoes would have known that this was likely to be important. She knew she had already delayed in bringing the claim. I find the plaintiff's explanation for this delay unsatisfactory.
86According to the plaintiff's statutory declaration of 6 August 2010, she was told on 4 March 2010 that further information was required as to the accident location. She went with Ms Kyneur to the accident scene and the correct accident location was noted and clarified on the claim form. However, a new certificate by the solicitor for whatever date the revised claim form was completed was not prepared. The 3 December 2009 accident form was simply reattached, as was the 4 December medical certificate.
87If the claim form was re-written after being filled out on 3 December 2009, it would have to have been a substantial re-writing. The site of the accident on page 1 and the diagram of the accident as well as the words underneath all referred to Liverpool Street and not to Elizabeth Street. If the plaintiff is correct, and the wrong address was given, what address was given to the police in the letter of 14 January 2010? What was their reply? The New South Wales Police report event number 40673433, which should be annexure B to the statutory declaration of Ms Cheong of 15 October 2010 is not attached.
88Individually each of these matters is insufficient to amount to a full explanation, or a satisfactory one. The overall picture that is painted by this history of omissions and delays is, however, a different matter.