Bano v Lucic

Issues 5By the time of the resumed hearing on 24 October 2013, the issues for determination had been substantially shortened. The subsequent reserved day was no longer needed as the issues arising under s 109 of the MAC Act no longer required adjudication. 6The remaining issues were first, whether the delay in the plaintiff commencing proceedings had been fully and satisfactorily explained, and secondly, whether the presumptive prejudice to the defendant so arising, should result in a refusal of leave for the plaintiff to proceed. The third issue involved the costs consequences of the outcome of the other issues. 7In deciding those issues, it is relevant to observe that the plaintiff gave entirely credible evidence. Her evidence was tested by cross-examination and was not faulted. I saw no reason not to accept any aspect of her evidence.

Evidence 8The plaintiff relied upon her affidavits respectively sworn on 19 and 20 August 2013, together with an affidavit from her solicitor, Ms Cherilyn Ribbons, sworn on 19 August 2013. Within that material was the plaintiff's statutory declaration sworn on 8 April 2011, which had been provided to the CTP insurer. The plaintiff tendered a report of injury form, which had been provided to her by her employer: Exhibit "A". 9The defendant relied upon an affidavit sworn by his solicitor, Mr John Renshaw, sworn on 18 September 2013, together with a photocopied bundle of the plaintiff's medical records produced by her general practitioner: Exhibit "1".

Facts 10As the plaintiff's claim was lodged later than 6 months following the date of her injury, it is necessarily classed as being a late claim: s 72 and s 73 of the MAC Act. 11It is necessary to review the plaintiff's background and circumstances for the purposes of evaluating her explanation for the delay that has been incurred: s 73 of the MAC Act. 12The plaintiff was born in Fiji in 1968. She migrated to Australia in 1991. Between 1997 and the time of her accident on 18 November 2008, she had worked as a process worker. At the time of the accident, she had been with the same employer since May 2007. 13The subject accident involved a substantial rear-end collision in which the plaintiff's vehicle had been struck from behind. The accident occurred whilst the plaintiff was journeying to her workplace. The plaintiff received injuries to her neck, her back and to her right shoulder, for which she consulted her general practitioner, Dr Goyal. The accident was reported to, and was investigated by the police. The insurer has admitted liability. 14The plaintiff was absent from her work for about one month. Her employer gave her a workers' compensation form. This was duly completed and promptly lodged with the employer. The workers' compensation insurer, QBE Workers' Compensation (NSW) Ltd, accepted the plaintiff's claim and paid her benefits, including for treatment over time. 15The QBE workers' compensation claim form, Exhibit "A", included full details of the accident and all other relevant details. 16The plaintiff had no previous experience or knowledge of compensation claims of any kind and did not then know she should also complete a CTP personal injury claim form and to provide it to the defendant's CTP insurer, QBE Insurance (Australia) Limited. It appears these two QBE entities were not in communication on the matter. 17The plaintiff continued to receive treatment for her injuries from the time of the accident until her return to work on light duties at the end of 2008. By early 2009, she was experiencing difficulties with her right arm and shoulder in the course of her work, and she found that she had to take time off from her work. Her employment was terminated in May 2009. 18At that time, she was having considerable difficulties with her right shoulder and this led to further investigations and ultimately, surgery, one year later. 19In the meantime, the plaintiff remained in ignorance of her right to make a CTP claim in respect of her injuries. 20In July 2010, a Mr Hodges, a QBE workers' compensation claims manager, suggested to the plaintiff she might pursue a CTP claim. That suggestion arose because she was having difficulty coping with her domestic responsibilities and she had requested the provision of some domestic assistance to assist her with coping with those responsibilities. 21Until the cited conversation with the QBE workers' compensation claims manager, the plaintiff had been proceeding under the belief that there was no other claim form required of her in the circumstances. She believed that once she had lodged her workers' compensation claim and it was accepted, there was nothing else she needed to do to protect her rights. 22At the time of that conversation, in July 2010 and following, the plaintiff was recovering from her surgery, she was having marital difficulties, and on account of her religious observances for Ramadan, she was restricting her out of home activities to essential matters. 23The workers' compensation insurer had been paying for the plaintiff to be driven to medical appointments until August 2010. She had not been made aware of the urgency of pursuing the legal advice suggested to her by the QBE workers' compensation claims manager. 24By September 2010, the plaintiff had resumed driving. She then consulted Riverwood solicitors in accordance with the suggestion by Mr Hodges that she seek legal advice. The plaintiff said she did not understand the advice that she was given, which was to the effect that she had to choose between making a workers' compensation claim, and making a CTP claim. She did not know why this was so, or how to make that election. 25She had not sought legal advice before that time because of worries she had over her marital situation. She was also suffering a good deal of daily pain from her injuries and found she was unable to focus on matters needing attention. She had understood that since she had made a claim for workers' compensation, she did not have to do anything else. 26She remained confused about what was required of her in the circumstances. As a result, on 24 September 2010 she went to see another firm of solicitors in Liverpool, called Paramount Lawyers. Whilst she was there some forms were filled in for her. She again did not understand the advice she had received. 27As a result, she discussed her circumstances with a friend who recommended that she consult her present solicitors. On 6 October 2010, the plaintiff consulted Brydens. 28Between 8 October 2010 and 24 November 2010, Brydens undertook legal work on the plaintiff's behalf. They requested a medical certificate from her, a police report was requested, a QBE claim form was requested, material was obtained from the employer, and by 25 October 2010, the plaintiff executed a retainer for her solicitors to pursue her claim. In the meantime, she was having injections to treat her right shoulder problems. The plaintiff attended her present solicitors again on 25 November 2010 in order to execute further forms. On 26 November 2010, the CTP claim form was lodged with the CTP insurer. 29That day, the plaintiff returned to Fiji to see her father who was ill. She returned to Australia on 13 December 2010. That absence has caused some minor and insignificant delay in her solicitors being able to attend to some of the insurer's requirements concerning the advancement of her claim. 30On the plaintiff's return from Fiji, some further but non-material delays had been incurred in the plaintiff receiving correspondence because her mail was being diverted due to problems with her ex-husband.

Issue 1 - Whether delay has been satisfactorily explained 31The question of whether the delay incurred by the plaintiff in commencing her proceedings has been fully and satisfactorily explained is a question of fact to be determined in the individual case: s 73(4) of the MAC Act; Ellis v Reko Pty Limited [2010] NSWCA 319, at [18]. 32The reasonableness of the plaintiff's explanation for the incurred delay is not to be considered to be satisfactory unless it is determined that a reasonable person in the position of the plaintiff would in her circumstances, have incurred the same delay: s 66(2) of the MAC Act. The explanation that is required, does not need to include a recitation of the minutiae of all the events that have transpired in the period of the delay: Walker v Howard [2009] NSWCA 408, at [104]. 33For the reasons that follow, in my assessment, according to that standard of evaluation, the plaintiff has provided a full explanation for the delay she has incurred in bringing her proceedings. 34First, in May 2009, because a CTP claim form had not been lodged, her claim was necessarily a late one from that time onwards. Secondly, it was not until her conversation with Mr Hodges of QBE in July 2010, when it was suggested to her she could pursue a CTP claim, that she had any inkling that such a claim might be available to her. Thirdly, in her subjective circumstances, absent any awareness of urgency in pursuing such a claim, she was distracted by her accident-related ill health, her domestic troubles, and her attention to her religious observances, meant she restricted her outings to essential matters. Fourthly, being a relatively unsophisticated person, it was not surprising that when she ultimately sought legal advice, she was confused by it, and sought clarification by seeking out alternative legal advisors. Sixthly, once she obtained legal advice that was given to her in terms she understood, she acted in accordance with that advice. 35In my view, the plaintiff's explanation is not only full, but having seen and heard her evidence being tested, I consider it to also be a satisfactory one. In my view, all of the elements of the delay incurred have been fully, reasonably, and therefore satisfactorily explained. In my view, she acted as a reasonable person in her circumstances would have acted in the circumstances. 36The next matter to be determined is whether, in the absence of any evidence of actual or significant prejudice arising to the defendant, the presumptive prejudice caused by delay should operate as a bar to the plaintiff being granted leave to continue the present proceedings.

Issue 2 - Whether relevant prejudice has been demonstrated 37All litigation is accompanied by a degree of presumptive prejudice to the opposing party. For the reasons that follow, in my view, as it affects the defendant in this case, presumptive prejudice should not operate as a bar to the plaintiff obtaining leave to proceed. 38First, the liability circumstances of the accident are clear, and the defendant has properly accepted liability. Secondly, the plaintiff's injuries and treatment have been adequately documented by her treating general practitioner and specialist, and in hospital notes. Thirdly, the circumstances of the plaintiff's injuries and their sequelae have been the subject of continued scrutiny for probity by the workers' compensation insurer. Fourthly, the plaintiff has provided the CTP insurer with a statutory declaration explaining her circumstances. Sixthly, the insurer has had the plaintiff medically examined over time. 39In my view the foregoing summary amply demonstrates that there is little if any scope for the CTP insurer to suffer disadvantage from presumptive prejudice of the kind that should be seen as requiring that her rights be subjugated to those of the insurer: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. 40To the extent that there was some delay incurred whilst the plaintiff pursued legal advice, in my view, such relatively minor delays should not serve to prevent the plaintiff from being permitted to pursue her claim. Those delays were not due to fault on her part, and in any event, no significant prejudice to the defendant has arisen. 41In the plaintiff's favour, allowance must be made for the possibility that an unsophisticated person such as the plaintiff would become confused by advice concerning a complicated procedural scheme that can at times also confuse trained lawyers. The reports of decided cases are replete with examples of those circumstances. 42The fact that a degree of administrative delay was incurred by the plaintiff's present solicitors in the course of documenting her claim, partly influenced by her temporary absence from the country for family reasons, and partly due to a complication over the re-direction of her mail, should not be seen as disentitling factors. Delay on the part of lawyers should not be seen to be a bar to obtaining leave to proceed: Smith v Grant [2006] NSWCA 244, at [60].

Disposition 43The plaintiff has provided a full and satisfactory explanation for the delay incurred in commencing her proceedings. No relevant prejudice exists. She should be granted leave to proceed with her claim that has already been filed.

Costs 44The plaintiff has succeeded in her application for leave to maintain the proceedings. The basis for the application had been provided to the insurer before the application for leave was pursued: s 73(1) of the MAC Act. The insurer had the option of either accepting or rejecting that explanation. In rejecting the plaintiff's explanation, the insurer's approach has determined the extent to which costs have been incurred in the present motions. 45Whilst an application to the court was in any event required for leave to be granted to the plaintiff to enable her to proceed, where the application was compelling, as is the case here, the application could have been consented to with minimal additional costs being incurred, in contrast to what has in fact occurred. 46Instead, the defendant has exercised the right to test the plaintiff's application and left it to the discretion of the court to determine whether the plaintiff's explanations should be accepted. In a clear-cut case such as this, an election along those lines carries with it costs consequences. 47In my view, substantial and avoidable costs have been incurred in these motions. This has been as a result of forensic decisions made by the defendant, ultimately without benefit to the defendant. In those circumstances, I also consider that the defendant should pay the plaintiff's costs of the motions on the ordinary basis, unless otherwise ordered.

Orders 48I make the following orders: (1)The defendant's notice of motion filed on 13 March 2013 is dismissed; (2)In respect of the notice of motion filed by the plaintiff on 24 May 2013, the plaintiff is granted leave to maintain the present proceedings commenced by statement of claim filed on 17 January 2013; (3)The defendants are to pay the plaintiff's costs of both motions on the ordinary basis unless a party is able to demonstrate that some other order for costs should be made; (4)The exhibits may be returned; (5)Liberty to apply on 7 days notice if further orders are required.

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: 19 November 2013