Bird by her next friend Bird v Connell

The relevant statutory provisions and principles of law

1. Section 109 of the Act provides: "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. (4) Subsection (3)(b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."
2. The following should be noted: 1. Section 109(2) provides that time does not run while the claim is referred to CARS and until two months after a certificate is issued. In the present case, the plaintiff's exemption certificate was issued on 3 December 2015, only one day after the application on 2 December 2015. In any event, as the 3-year limitation period had already expired prior to the application for exemption, s 109(2) did not operate to extend the time by which proceedings had to be commenced. 2. The plaintiff is not required to establish the 25% threshold referred to in s 109(3)(b) as she is a minor.
3. Section 66(2) of the Act provides: "(2) 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 issue for determination is whether the plaintiff has failed to provide a "full and satisfactory" explanation for delay in the commencement of proceedings until 17 May 2016. The parties each referred me to Walker v Howard (2009) 78 NSWLR 161 as to the relevant test.
5. Briefly stated, it is necessary to examine whether the whole of the explanation is one which the reasonable person in the position of the claimant would or would not have been justified in experiencing. I specifically note three factors to take into account in these proceedings: 1. The court's special concerns for plaintiffs under a disability, whether cognitive (as was the case in Walker v Howard) or, as here, where the plaintiff is a minor as well as suffering from significant mental issues. 2. The approach the court should take where the delay in question has been the delay of the legal practitioner rather than the applicant for leave (Smith v Grant (2006) 67 NSWLR 735; Brierley v Ellis at [37] - [57]). 3. A reasonable person could experience a delay where there was a delay in onset of symptoms, or those with the care of the person under disability was "either unaware of her symptoms or… unaware of their full extent" (Figliuzzi v Yonan [2005] NSWCA 290). The nature of the plaintiff's injuries was not immediately apparent and the defendant concedes that this is a significant feature in relation to any delay prior to liability being admitted. The plaintiff submits that this is a significant feature up to the time Mr Glancey's report was obtained.

"Full and satisfactory" explanation

1. The question of what is a "full" explanation is explained in Dijakovic v Perez (2015) 71 MVR 334 at [15] - [17] as follows: "[15] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. These were explained by Meagher JA (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) (2014) 69 MVR 127; [2014] NSWCA 433 at [16] (Karambelas). [16] First, it must include 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". In the case of late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic's explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014. [17] The purpose of the requirement that the explanation be full, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant", is so that the court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. (Mancini). It is for this reason that it has been said that the applicant for leave cannot "pick and choose" the information to be given relevant to the delay and which the court has to decide is "satisfactory": Mancini at [46]."
2. The question of what is a "satisfactory" explanation is set out in Lyu v Jeon [2012] NSWCA 446 at [22] - [25]. Meagher JA explained the requirement for the explanation to be "satisfactory" in circumstances where, as is the case here, it is not easy to determine the extent to which the characteristics of the person in question are to be attributed to the "reasonable person": "[22] In Diaz v Truong, Giles JA said (at [42]) of the equivalent provision in s 40(2) of the Motor Accident Act 1988: The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being "justified in experiencing" a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay. That elucidation of what being "justified in experiencing" a delay means is not controversial: see Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45 ; 56 NSWLR 425at [46], [94], [100]; Walker v Howard esp at [96]-[97], [101]-[102]. [23] As Allsop P explained in Walker v Howard (esp at [64], [68], [69], [90], [97]), the test so expressed is a construct for the making of the evaluative judgment or assessment as to whether, given the claimant's position, the delay which occurred was reasonably justifiable; that question to be answered by asking whether a reasonable person in the claimant's position would have experienced that delay. It requires that characteristics and circumstances of the claimant be taken into account when applying the objective standard. In some cases it will not be easy to determine the extent to which the characteristics of the person in question are to be attributed to the "reasonable person" because those characteristics may not sit comfortably with the notion of the "reasonable person". The present is not such a case. [24] Two further matters are, however, relevant in the present context. First, as Gleeson CJ observed in Russo v Aiello (at [5], [7]), what will constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes of the MAC Act. See also [74] per Gummow and Hayne JJ. Those purposes include encouraging the early investigation, assessment and resolution of claims so as to advance the interests of claimants in having prompt treatment and rehabilitation, and in having the prompt payment of lost earnings; and so as to advance the interests of insurers in more accurately predicting claims frequency and formulating premiums. The Act seeks to achieve these objects by the imposition on both claimants and insurers of time limits and obligations to act expeditiously: see also Walker v Howard per Allsop P at [90]. [25] Secondly, as Gleeson CJ also observed in Russo v Aiello at [7]: … what the Act requires is justification for delay; not demonstration that the delay caused no harm. … the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration."
3. The principal problem in these proceedings is that the plaintiff is a minor with significant disabilities. Her mother, who is her tutor, suffered serious injuries in the accident, is a single parent on a pension, and has been not only the carer for the plaintiff but also for an older child with similar disabilities. Additionally, the question of what is "reasonable" needs to take into account that much of the explanation is the incompetence and dilatoriness of the solicitors the plaintiff consulted.

Conduct of persons other than the plaintiff

1. The question of the approach to take in cases where the plaintiff is a minor was first referred to in the New South Wales Court of Appeal in Blackburn v Allianz Australia Insurance Ltd (2004) 61 NSWLR 632. In Smith v Grant, Basten JA observed: "[61] The second matter to which Hodgson JA drew attention in Blackburn (at 654 [56]) was the suggestion that the characteristics of a "reasonable person in the position of the claimant" might leave out of account tender years, or perhaps brain damage. His Honour expressed no concluded view on that question although he thought it "unlikely that the legislature intended to promote legal proceedings by a child against its uninsured parent". Similarly, in this case, nothing was said to turn upon the particular characteristics of the claimant, nor was it suggested that any particular characteristics should be excluded from the equation. Like Hodgson JA, I would reserve this question to a case in which it arises. A cautious approach is required because the test is one which is not restricted to this legislation. For example, s 5F of the Civil Liability Act 2002 refers to an "obvious risk" in relation to negligence proceedings, as a risk that in the circumstances "would have been obvious to a reasonable person in the position of" the person who suffers harm. Further, there is a considerable jurisprudence, to which the Court was not taken, no doubt because it was not directly relevant in this case, dealing with the concept of constructive knowledge in the area of limitation provisions: see, for example, Adams v Bracknell Forest Borough Council [2005] 1 AC 76. Lord Hoffmann noted, in relation to s 14(3) of the Limitation Act 1980 (UK) (at 86 [33]): Section 14(3) uses the word 'reasonable' three times. The word is generally used in the law to import an objective standard, as in 'the reasonable man'. But the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question … The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard."
2. Allsop P analysed this issue in Walker v Howard (at [95]-[96]), concluding: "[95] As is perhaps evident, the above line authorities is not without difficulties in reconciliation. The most recent authorities: Figliuzzi and Smith, both relying significantly on what was said in Russo v Aiello, take the test of satisfactoriness in the second sentence of s 66(2) as the operative standard: that is, it is not merely necessary, but it is sufficient. I agree with that conclusion. The two sentences in s 66(2) are a composite whole. Though the second sentence is expressed as "not satisfactory unless" rather than "satisfactory if", reading the section as a whole the objectified standard in the second sentence is intended, in my view, to be the operative test of satisfactoriness. [96] Respectfully, I cannot agree with Hodgson JA and Foster AJA in Diaz that the focus in the second sentence is only upon the acts or omissions of the claimant. It is the whole explanation - the full explanation contemplated by the first sentence against which the question is to be asked whether the reasonable person in the position of the claimant would or would not have been justified in experiencing."
3. His Honour concluded (at [106]) that "the acts and omissions of all relevant persons should be canvassed in the explanation to allow the court to make an evaluation".
4. The facts in Walker v Howard were similar, in that the plaintiff (an adult) was under a disability because of his injuries, and the solicitor who from time to time gave advice and his family members did not in fact occupy any kind of official position to do so. Campbell JA noted at [126]-[127]: "[126] An incapable person cannot sue in court except by a tutor (UCPR 7.14), and Mr Howard had a tutor from the time of commencement of the proceedings. It is unnecessary to consider the extent, if any, of the legal authority a tutor acquires to bind the incapable person merely in consequence of having himself or herself appointed tutor (Haines v Leves (1987) 8 NSWLR 442 at 449-51; Ex parte Davis (1901) 1 SR (NSW) (L) 187; ss 75, 76 Civil Procedure Act 2005; Arabian v Tufnall and Taylor Ltd [1944] KB 685), as the time that is relevant to the present application came to an end no later than when the proceedings were commenced. It is true that s 66(2) MAC Act talks of conduct "from the date of the accident until the date of providing the explanation", but s 66(2) is a quasi-definition that is intended to apply in several different types of circumstances. The relevant delay in the present case is delay in commencing proceedings, bearing in mind that under s 109(2) time does not run during a particular period after a claim has been referred to the Authority. Events after the proceedings were commenced do not bear upon that particular delay. [127] During the whole of the time until the proceedings were commenced the action that Ms Wales, Ms McInerney and Mr Day were taking in the interests of Mr Howard was action that they had no legal authority to take in a way that would bind him. Had they had legal authority and responsibility to enforce his legal rights their action (and inaction) might possibly in law have been treated as his action - though any question of the extent to which the actions and inactions of a properly appointed agent affects the running of time under s 109 should be left for a case in which it arises. What matters for present purposes is that when they had no authority to act as his agent that simple equation of positions cannot be made. That they tried, sporadically and within their financial limitations, to help Mr Howard is part of his position, but it is likewise part of his position that they had neither legal power nor legal obligation to do so, every bit of assistance that they gave him was in the nature of a gift, and they were free to cease helping him at any time."
5. Young JA, describing the test as being to a degree "smoke and mirrors" (at [135]), concluded (at [148]-[152]): "[148] It would seem to me on first principles that if one has a person with disabilities, such as a child with parents or guardians, or an incapacitated person who has a manager, guardian or committee, that there is identity with that person who has a legal duty to act in the best interests of the incapable person. However, is the situation different where the incapable person does not have anybody who is legally bound to so act? [149] This question must be approached by reminding oneself of the object of the exercise. That is, to measure the delay experienced by this claimant with the delay that would have been experienced by the hypothetical reasonable person. How can one do this unless one places the hypothetical reasonable person not only in the shoes of the claimant but also with his abilities and disabilities and in his home surrounded by his or her friends and relations? [150] In my view it is virtually impossible to construct a model of a reasonable or ordinary person for the purpose of assessing comparable experience of delay unless one does take into account factors like a person's friends and relations and their (limited or unlimited) capacity and ability and willingness to assist. [151] Obviously there are other ways of looking at the problem and, indeed, when one takes those sorts of characteristics into account, one weakens the objective test which the legislature plainly intended should be applied. My earlier comments on objective tests mean that I am not overly concerned about this. Further, one may otherwise get a false result as the primary judge pointed out, why should the assistance of impecunious relatives and an unpaid solicitor put the claimant in a worse position than a brain-damaged plaintiff with no such assistance. [152] The delay has to be considered by having a full account of what brought it about, including the conduct of the claimant and others. One then has to take that into account and say, if that delay in the circumstances of that activity or non-activity had occurred in the case of a reasonable person with no funds who is brain damaged and with relatives of limited means, would the same or greater delay have been experienced?"
6. The particular problem of children whose claims are not brought within time has been more recently discussed by Rothman J in Zraika (bnf Zraika) v Walsh (2011) 60 MVR 17 at [28]-[30] as follows: "[28] The test is an objective one, namely, whether a reasonable person in the claimant's position would have been justified in experiencing the delay (Walker at [64], [108] and [134]), but the position of the claimant includes the legal or physical disability under which the claimant suffers, (Walker at [64], [97] and [107]). [29] Even if, contrary to the authority in the Court of Appeal by which I am bound, and to which reference has been made, the reasonable person in the claimant's position was a term that did not take account of the physical disabilities suffered by the claimant, there would be little or no difference in the circumstances of this case, where the claimant is now eight and a half years old, as already stated. At the conclusion of the three-year limitation period the claimant was two years and eight months of age. The period for which explanation is required is the period from the date of accident until the date upon which leave is sought to commence the proceedings, and, as again already stated, in this case includes the period during which the plaintiff was unborn. [30] Nevertheless, it is not the tutor or the legal advisors that are even fictionally the "reasonable person" to which the Act refers, but their conduct forms, usually, part of the circumstances to be taken into account when considering whether the delay was justified: Walker at [100] and [150]."
7. Mr Guihot submitted that this approach went further than Walker v Howard, but I consider that these are the same principles, merely differently expressed.
8. In the present case, as is set out below, there is no documentation or evidence from the tutor as to why her claim proceeded and was settled, while her daughter's claim never proceeded past the stage where the defendant admitted liability. She asserts that she only knew of the limitation period in March 2016; if that evidence is accepted, there is an explanation up to the date of filing of the statement of claim by reason of service of the s 85A particulars. The relevant evidence is set out in more detail below.

The conduct of the solicitor with carriage of the proceedings

1. It is not uncommon, in cases such as the present, for the explanation to be the incompetence or dilatoriness of the solicitor in conducting the proceedings diligently and/or advising about limitation issues. In Smith v Grant, Basten JA stated, at [32] - [33]: "[32]…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. [33] As noted above, the insurer contended that the conduct of a claimant must be taken to include the conduct of her authorised agent, namely the solicitor. To an extent that contention should be accepted. Thus the claimant seeks to rely upon steps taken by her solicitor and, indeed, his omissions. Those are objectively identifiable matters which may form part of a full explanation. However, for reasons given below, it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor (see at 749 [60]). That being so, it follows that an explanation may be a "full explanation" without exploring the blameworthiness, or otherwise, of the solicitor."
2. As is set out below, there are long gaps in the conduct of these proceedings which are never explained, and almost no documents produced from the file. The solicitor(s) with conduct for the period June - December 2015 are unknown.
3. Mr Guihot submitted that, while the court might determine that the plaintiff's age and medical problems might be sufficient for the "satisfactory" test, the failure of the plaintiff's tutor and solicitors to provide key documents and explain long periods of inaction meant that the explanation could not be "full".

"Full" explanation

1. The defendant raised a series of issues in relation to the absence of documents and information.

(a) Absence of documents relating to knowledge of the limitation period

1. The only explanation by the plaintiff's mother, her tutor, as to her knowledge or belief concerning the three-year limitation period is the statement that she was told about this on 10 March 2016, ten months after the limitation period had expired.
2. In her affidavit, the plaintiff's mother refers to receipt of "some introductory letters" from the plaintiff's solicitors, but these have not been provided. There are no documents in relation to the advice the plaintiff's mother was given by the solicitors Catherine McKay and Christine Le in March and June 2014 concerning the lodgement of the claim for and the NRMA response in June 2014. There are no documents in relation to the plaintiff's mother's conference with Mr Petrie of counsel on 28 January 2016 or of the conversation she had with Ms Kakala on 10 March 2016, when she finally learned of the limitation period.
3. The plaintiff's mother asks the court to accept this evidence uncritically in circumstances where she does not produce the introductory letters or give details of the explanations and/or advice of Ms Le.
4. In Smith v Grant, the plaintiff had not provided any statement about knowledge of the limitation period. As Basten JA noted (at [34] - [38]), it was necessary to know what to make of that absence of information. Basten JA did not consider it fatal, although these matters could have been more directly stated. The key was that the plaintiff depended on her solicitor's legal advice and (at [37]) left it up to him, in circumstances where the plaintiff thought that the matter had excellent settlement prospects. The plaintiff's tutor would certainly be entitled to think so here; there was an admission of liability, her own case was settled and there was expert medical evidence in the form of treating doctors' reports.
5. The plaintiff's mother is a single parent who at all relevant times has lived in Housing Commission accommodation. She has one other child, whose complex medical history (since he suffered from Asperger's Sydrome and seizures) meant she had a very difficult life. The plaintiff had been receiving treatment for a range of problems which I will not describe but which must have added to her mother's difficulties.
6. The absence of so much documentation is a significant gap and would falls well short of a full explanation unless the incompetence of PK Simpson Solicitors is taken into account. I am satisfied that PK Simpson did not adequately explain these issues to the plaintiff's mother. She saw her own claim being progressed and did not understand that the limitation period in her daughter's claim had been allowed to pass. To answer the question posed by Young JA in Walker v Howard, I am satisfied that a reasonable person with no funds who is brain damaged and with relatives of limited means, would have experienced the same or perhaps an even greater delay.

(b) Absence of affidavits or information about the conduct of the proceedings from the lawyers with carriage of the matter up until December 2015

1. Independently of the absence of documentation about the plaintiff's mother's knowledge of the limitation period, there is a lack of documentation generally in relation to all aspects of the history of the solicitors' conduct of the plaintiff's claim.
2. There is no affidavit from Ms McKay, the solicitor who first took instructions and filled out the claim form on 14 March 2014 and who had carriage of the proceedings until her departure in June 2015, after the limitation period had expired. Ms Le clearly provided advice in July 2014 about the claim being late in relation to the six-month period (see paragraphs 25 - 26 of the mother's statutory declaration), but that advice has not been provided. No correspondence or file notes authored by Ms McKay are provided apart from three short letters seeking medical records and then forwarding these to the NRMA in July -September 2014.
3. Another solicitor, Christine Le, contacted the mother about the section 81(1) Notice and witnessed the statutory declaration in 2014, but any advice she gave the plaintiff's mother is undisclosed. No correspondence or file notes are provided in relation to this solicitor, and she is not mentioned in the chronology or affidavits.
4. There is even less information about the unnamed "new solicitor" who had carriage of the claim from June to December 2015, except for the statement that "there appears to have been little activity on the file" (paragraphs 21 - 22 of Ms Kakala's affidavit). No correspondence or file notes are produced. In particular, no correspondence with Mr Glancey about the missed appointments was produced. Mr Glancey addressed his report of 5 February 2016 to Ms McKay, although she had left the firm in June 2015. I note that over the same period the plaintiff's mother was unaware that Ms McKay had left the firm.
5. Ms Kakala appears to have taken over carriage of the matter in December 2015 at the earliest. However, she did not tell the plaintiff about the limitation period until 10 March 2016, in the course of an informal settlement conference. No documents to support this are produced.
6. It is hard to credit the mother's explanation of not knowing the three-year limitation period when she had not only brought and settled her own case, but had completed a statutory declaration in relation to the lateness of the lodgement of the claim. How is it possible that she did not notice the fact that her daughter's claim was not being conducted alongside her own, and what was her understanding of limitations on motor vehicle claims at the time Ms Christine Le helped her fill out the statutory declaration? Ms Kakala's affidavit is entirely silent as to any role Ms Le played and, as noted elsewhere, none of the file notes or introductory correspondence referred to in the affidavits have been attached.
7. In Smith v Grant, Basten JA, allowing an appeal in circumstances similar to the present, observed: "[60] Accordingly, the weight of authority under the Motor Accidents Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd (at [22]) (Beazley JA, Tobias JA agreeing) in relation to the Motor Accidents Compensation Act."
8. As is set out above, I am satisfied that the reliance of the plaintiff's mother on the advice of her solicitors, although it was negligent, could provide a full as well as a satisfactory explanation for her failure to ensure the same solicitors, in their action for her daughter, delayed the commencement of proceedings.

The explanation about delays in seeing doctors

1. Although the plaintiff was already seeing a psychologist who was qualified to provide a diagnosis, a decision was made to retain a medico-legal expert and "on 27 November 2014, there is a file note from the solicitor who then had carriage of the matter" giving instructions to obtain such a report from "an appropriate child psychologist" (affidavit of Ms Kakala, paragraph 16). That file note is not produced, and neither is the letter to Dr Abu-Arab, or any correspondence with him concerning the plaintiff's failure to attend.
2. According to Ms Kakala's affidavit, the mother failed to keep an appointment for the plaintiff with Dr Abu-Arab because she did not receive the letter detailing the appointment date. None of this material is attached, and none of the material about the subsequent retaining of Mr Glancey and the reasons for the two missed appointments and the final successful appointment is attached.
3. The total absence of documents from the plaintiff's file, the reference to unnamed solicitors and the unexplained delays in performing these tasks are unexplained other than by the incompetence of the solicitors. For the reasons set out above, I am satisfied that a reasonable person in the place of the claimant would not have understood any of these requirements for specialist reports and would have been reliant upon the solicitors.

The failure to seek a CARS exemption until 2 December 2015 and failure to commence proceedings until May 2016

1. The plaintiff's failure to apply to have the claim exempted from CARS until 2 December 2016, which could have been done at any time after the insurer admitted liability on 6 August 2014, is unexplained. The claim was required to be exempted as a mandatory exemption under s 92(1)(a) of the Act (in accordance with Clause 8.11.13 of the Claims Assessment Guidelines). It was a straightforward application to make; in fact, the plaintiff's application of 2 December 2015 was approved the following day.
2. The importance of seeking the exemption certificate is that it was not possible to commence court proceedings until the certificate had been issued. When the certificate was issued, the plaintiff was (subject to satisfying s 109(3)) entitled to commence proceedings. However, the plaintiff did not do so until May 2016.
3. Mr Petrie submitted that the reason for this was the two-month statutory bar on commencing proceedings after providing particulars, which occurred on 14 March 2016 (see ss 82(1)(b) and 85A). The reason for the delay in serving the particulars was that the plaintiff's solicitors could not do so until they received Mr Glancey's report. However, the reason for seeking a medico-legal report from Mr Glancey when the plaintiff already had a treating psychologist who had had the benefit of treating her both before and after the accident was never explained.
4. I am satisfied that the reasons for not seeking a CARS exemption after liability was admitted are sufficiently full if one assumes incompetence of the solicitor.

"Satisfactory" explanation

1. The explanation must be both full and satisfactory, and different factors and evidence may be relevant for each part of the test.
2. However, in a case such as the present, the plaintiff's young age and pre-existing problems are compounded by the difficulties of the tutor, a single parent struggling with serious injuries of her own and with a long history of having to care for the plaintiff and another child with cognitive disability problems.
3. Each of the areas identified by Mr Guihot as requiring a full explanation also requires a satisfactory explanation. For the same reasons set out in relation to the fullness of the explanation, I am satisfied that these explanations are satisfactory, in that a reasonable person in the position of the plaintiff would have been justified in experiencing the same degree of delay, having regard to the high degree of dependence and vulnerability of both the plaintiff and her tutor.
4. The plaintiff has accordingly demonstrated a full and satisfactory explanation in accordance with the requirements of s 109 of the Act.
5. I briefly note Mr Guihot's submissions in relation to prejudice.

Prejudice

1. No claim of actual prejudice was made.
2. While the only prejudice claimed is presumptive, Mr Guihot submitted that it was significant. The plaintiff suffered from a wide range of pre-existing problems and the difficulties of untangling the skein of causation, especially given the effluxion of time, should be taken into account. However, the relatively recent report of Dr Glancey confirms that these are issues which can be addressed without significant difficulty.

Costs

1. The inadequacies of the plaintiff's affidavit material and the nature of the explanation of the delay are such that an order for costs in favour of the defendant should be made. I have granted liberty to restore in relation to costs in the event that any order is sought by the plaintiff's tutor or by either party.

Orders 1. Pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW), extend time for commencement of these proceedings to the date of the statement of claim filed in these proceedings, namely 17 May 2016. 2. Plaintiff pay defendant's costs. 3. Liberty to restore in relation to costs. 4. Exhibits retained for 28 days.

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