77 GILES JA: This is an application for leave to appeal, with an attendant application for an extension of time, from dismissal of the claimant's District Court proceedings on the ground of delay in making a claim for damages. The reasons of Mason P, which I have had the advantage of reading in draft, fully refer to the facts and the applicable legislation.
78 I would grant the necessary extension of time and grant leave to appeal. Respectfully disagreeing with Mason P, however, I would dismiss the appeal. In explaining why that is so, I draw upon his Honour's reasons and avoid needless repetition.
79 It was necessary that the opponent satisfy the judge that the claimant "does not have a full and satisfactory explanation for the delay in making the claim". The explanation had to be both full and satisfactory. The judge was satisfied that it was neither. I pass over whether it was a full explanation, although it might be thought that "I have no reasons" pointed to a gap in an account of actions, knowledge and belief. In my opinion, the error has not been shown in the judge's determination as to a satisfactory explanation.
80 The accident occurred on 16 July 1999. The claimant had no memory of the accident. When interviewed by the police on 4 August 1999 he was told by them that there were no other witnesses. He was also told that no charges would be laid against the opponent.
81 The claimant was in hospital until 7 August 1999. He said that he was thereafter "incapacitated and on crutches for a long time".
82 At the prompting of family members (as I would infer, because the claimant said in connection with it that family members "suggested that I take up some action"), in November 1999 the claimant engaged a private investigator "to investigate the circumstances of the accident". The private investigator, Mr Paul Miles, was a family friend. When Mr Miles was engaged the claimant knew that he had six months from 16 July 1999 to make any claim for damages.
83 On 16 November 1999 Mr Miles told the claimant that he had obtained "the Police Traffic Accident Report" but that "at that stage he was awaiting a response to his application to interview the police investigating officers". The document obtained by Mr Miles was not in evidence and was not otherwise described.
84 Neither when he engaged Mr Miles nor thereafter did the claimant ask him to hurry his investigation because of the six month time limit. The claimant said that Mr Miles "was doing it as a favour, and I didn't want to push him".
85 In late December 1999 Mr Miles provided a report dated 6 December 1999. The document was not in evidence, nor was it otherwise shown whether or when Mr Miles interviewed the police investigating officers or what "circumstances of the accident" he reported.
86 The six months expired on 16 January 2000.
87 At some time in February 2000 the claimant saw Mr Marr of counsel and was given advice "in relation to the matter" including to lodge a claim. When in February this occurred was not stated.
88 In March 2000 the claimant obtained a claim form. The claim form asked about treatment for injuries and included a note, "Remember to get your doctor to complete the yellow Medical Certificate form". The claimant made an appointment with Dr Ellis for two weeks later. The doctor was on leave when he attended, and a further appointment was not available until the end of April 2000. Presumably conscious of the passing of time, on 3 April 2000 the claimant sent the claim form to the insurer without the yellow form. Counting backwards, the claim form was probably obtained by the claimant in the first half of March.
89 About three months passed between the claimant's discharge from hospital and his engagement of Mr Miles. He must have contemplated making a claim for damages from very early on: that underlies his evidence that, after he had been told of the police investigation, he needed a "second opinion" and needed "to investigate it to find out what the story was about the accident", and his evidence of his family's suggestion. The claimant's initial explanation for delay in the investigation was that he was incapacitated and on crutches, but he agreed that he was not thereby delayed in engaging Mr Miles and this three months was left -
"Q. Well what reason do you have for delaying until November 1999 before you contacted the investigator?
A. I have no reason."
90 The evidence does not warrant a finding that the claimant knew of the six month time limit until when he engaged Mr Miles. But there was significant failure on the claimant's part between leaving hospital and engaging Mr Miles to take prompt steps towards claiming damages from the opponent.
91 A further month and a half or more went by before the claimant was provided with Mr Miles' report. The claimant knew of the six month time limit, and that the time was running out. It is not easy to see what Mr Miles thought might come from interviewing the investigating police officers, but (as events showed) whatever Mr Miles reported was likely to be only the first step, followed by obtaining legal advice. It was all the more important that Mr Miles be hurried up if the six month time limit were to be achieved. This was not done. If the claimant felt inhibited in hurrying Mr Miles up, because Mr Miles was doing him a favour, he could have had someone else "investigate the circumstances of the accident".
92 After late December 1999 there was then at best leisurely attention to making a claim, even allowing for the time of year. There are many lawyers in Sydney, where the claimant lived. No reason for seeing Mr Marr rather than some other lawyer was given. If Mr Marr was seen in early February 2000 there was delay in obtaining the claim form; if Mr Marr was not seen until late February 2000 the delay in obtaining legal advice was all the greater. The claimant knew that the six months would expire on 16 January 2000, then knew that it had expired. Three months went by.
93 Whether a satisfactory explanation for the delay in making the claim is provided looks to the period until "the date of providing the explanation". There is no need to decide whether this called for regard to the period from 3 April 2000 to the hearing before the judge, as no one suggested that regard to that period either added to or detracted from the satisfactoriness of the explanation.
94 The question was whether the explanation for the delay, being the delay in that the claim was not made until 3 April 2000, had been satisfactorily explained. The judge had to be satisfied that it had not been, with the persuasive burden on the opponent. The necessary requirement for a satisfactory explanation was that "a reasonable person in the position of the claimant … would have been justified in experiencing the same delay". This, as I observed in Diaz v Truong (2002) 37 MVR 158 at [41]-[42], is intended to set an objective standard of conduct and meaning 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 language of experiencing the delay must have been intended to take account of other persons' conduct affecting the making of a claim.
95 The requirement must be understood for its function in the wider scheme in the Act. Section 43 states as its object, that is, the reason for the six month time limit, promotion of the early making of claims to enable the insurer to commence investigation while evidence is available, to identify injuries and facilitate access to injury management and rehabilitation services, and to more accurately predict claim frequency and hence formulate premiums. Late claims will still be recognised provided a full and satisfactory explanation for the delay in making the claim is provided, but only if the claimant's explanation is (relevantly) satisfactory, and satisfactoriness is given a minimum content. A person with knowledge of the six month time limit, in particular, can not tarry.
96 The judge's reasons sometimes rather inappropriately refer to compliance with a duty, and the important sentence ending "have been justified" went grammatically astray. Nonetheless it is plain that the judge was satisfied that the explanation for the claimant's delay did not fulfil this necessary requirement. Satisfaction that a claimant does not have a satisfactory explanation for the delay in making the claim involves a normative judgment. It is not the exercise of a discretion, but where minds may reasonably differ in the making of the normative judgment it must be asked whether the judge's determination was open to him. If it was, error is not shown simply because another mind might have come to a different determination.
97 In my opinion, the judge's determination was open to him.
98 Allowing for the claimant to regain an ability to attend to his affairs following his discharge from hospital, there were nonetheless unexplained months until November 1999, then failure to hurry Mr Miles along despite the known six month time limit, then after late December 1999 the at best leisurely attention to making a claim despite the known imminence of the expiry of the six months and later the knowledge that it had expired. The whole period of delay must be considered, so that the earlier unexplained inaction impelled prompt action when the six month time limit was known. The judge was entitled to conclude that a reasonable person in the position of the claimant would not have been justified in experiencing the delay.
99 I propose the orders -