Butler v Greenaway

District Court of NSW|2007-02-16|Before: Mr P, Kearns J

Background

The defendant's motion seeks dismissal of the proceedings on the basis that the plaintiff's claim was submitted outside the time required by section 72(1) of the Motor Accidents Compensation Act 1999 (MACA) and that the plaintiff has not provided a full and satisfactory explanation for the delay in making the claim.

The motor accident in respect of which the proceedings arise occurred on 6 March 2003 and the plaintiff's step-brother, Jason, was killed in the accident. The proceedings that the defendant seeks to have dismissed are for damages for nervous shock. In addition, proceedings have been brought under the Compensation to Relatives Act where the plaintiff is included as a defendant.

The accident, the subject of the proceedings, occurred in Macquarie Street, Windsor. The accident occurred when the defendant drove his motor vehicle across the path of the deceased causing fatal injuries.

At the outset, I would say that I accept the evidence of the plaintiff. There seem to be some errors in some of the evidence and, where necessary, I refer to those.

Plaintiff's evidence 5. The plaintiff is a married man with five children ranging in age from 15 to 2. He was very close to Jason.

He drove past the scene of the accident after it had occurred and his motor vehicle broke down nearby. He telephoned his father for help. He was then at the accident scene for a short time. He was not aware that Jason had been involved. He saw a body under a blanket and did not realise it was Jason. He then went home. He telephoned intending to speak to Jason and spoke to Hayley Ifield who was living with Jason. He says that Hayley was not aware of the accident - presumably there was some discussion between them about the accident. Later that day, he received a telephone call from Hayley advising him that Jason had been killed in the accident. He was devastated by the news. He saw Jason's body at the funeral parlour.

He apparently developed some delusional beliefs, thinking that Jason had not been killed in the accident and that the collision was intentional.

Since the accident, he has been depressed and cranky and snaps at his wife and children. He has had constant headaches and missed work because of them. His sleep has been broken with dreams of Jason. He does not feel like eating and lacks energy. He has lost interest in the things that he used to enjoy. He often thinks life is not worth living.

Following the accident, he was away from work until 14 March 2003. On return to work, he found he was unable to carry out his work and left a few months later. He was unable to return to work until April 2004 when he returned to work as a labourer at Pace Farms. He found it difficult to continue with the work and was retrenched in January 2005. His affidavit does not disclose why he was retrenched and, on the evidence before me, I do not find that it was because of any sequelae of the motor accident. I do accept, however, that he was finding it difficult to continue with the work because of the sequelae of the motor vehicle accident. He returned to work in March 2005 as a labourer, but was unable to continue and he ceased in about August 2005 and has not returned to work. I infer that he was unable to continue because of the sequelae of the motor vehicle accident. I am fortified in that view by the opinion of Dr Stubbs - Annexure J to the affidavit of Herbert Weller, the plaintiff's solicitor, sworn 15 November 2006.

"Kevin's brother Jason was died [sic] as the result of injuries received in a road traffic accident on 6 March 2003. Kevin has since suffered from depression and anxiety, flashbacks, disturbed sleep, short term memory problems, frequent tension headaches, lethargy and suicidal thoughts. His headaches have been treated with Sandomigran (which was not tolerated because of weight gain), Naprosyn and Deptran. Kevin has received grief counselling through Hawkesbury District Health Service. Aurorix 300mg twice daily was initiated on 27 June 2005 for severe depressive illness. Kevin was switched to Zoloft 50mg daily on 30 August 2005 because of poor sleep, lethargy and poor appetite. When reviewed on 15 September Kevin complained of worsening headaches since he had commenced Zoloft although he had been sleeping better. He was changed to Luvox 50 to 100mg at night. His blood glucose readings had been elevated but were beginning to improve. He continued to see his counsellor. Mr Butler is suffering from severe anxiety and depression which dates from the death of his brother."

Also, the report of Kate Carlin (Annexure I) contains history consistent with this.

"They spoke about general ill health and problems and sleep disturbance. Kevin stated that he still had trouble with the image of his brother in the mortuary and felt that his inability to hold down any permanent employment was attributed to his brother's death."

When he was working at Pace Farms, he was having a lot of headaches and feeling very down. He felt worse than he had been and was having a lot of days off work.

In his affidavit of 20 July 2006, he says he first instructed his solicitor regarding this claim in conference on 21 February 2005. This is probably a reference to when he first instructed his solicitor in conference in relation to the claim for nervous shock. That is how I read it. However, the date would appear to be wrong. On 16 February 2005, he attended his solicitor and completed a claim form. Mr Weller, in his affidavit, states that he first discussed a claim for nervous shock with the plaintiff in conference on 3 February 2005.

It seems likely that, before February 2005, the plaintiff had discussed this claim with his solicitor and probably by telephone.

The plaintiff conceded in cross-examination that in August 2004, he was aware of a time limit problem on the claim for nervous shock.

His affidavit may then be summarised in the form of a chronology which I set out hereunder, with some added commentary.

9 April 2003 14. His father attended Mr Weller to complete the Compensation to Relatives Claim form to which the plaintiff was listed as a dependant. The document was sworn and sent to the insurer the same day.

17 April 2003 15. Mr Weller received a letter from the insurer acknowledging receipt of a claim form and advising that the insurer had begun enquiries.

28 April 2003 16. The plaintiff attended Mr Weller and gave instructions with respect to loss suffered by reason of Jason's death and completed a statement in support of his claim regarding the Compensation to Relatives claim.

27 August 2003 17. A fax was sent by the insurer to Mr Weller with regard to the Compensation to Relatives claim form received by Hayley Ifield. Mr Weller sent a return fax indicating instructions were being obtained. Context is given to this evidence by the affidavit of Mr Weller where he states that there was dispute between Jason's family and Hayley Ifield, who was claiming to be Jason's de facto. The dispute resulted in an order that she be separately represented in the Compensation to Relatives proceedings. The dispute extended to Jason's belongings and superannuation entitlements.

It is worth interposing here to note that the trustees of Jason's superannuation scheme deemed the benefits should go 75% to Hayley Ifield and 25% to Jaye Ifield. That was on 21 April 2004. That decision was appealed.

26 June 2004 19. The plaintiff completed a statement detailing his dependency on Jason.

27 July 2004 20. The parents attended Mr Weller in conference to give instructions. Mr Weller sent a letter to Sparke Helmore (now acting for the insurer) requesting a Compensation to Relatives Act claim form and a claim form for nervous shock.

10 August 2004 21. Mr Weller received a response from Sparke Helmore advising that their client requested him to refer to the Motor Accidents Authority for the relevant forms and that pursuant to section 27 (this plainly should be a reference to section 72) any claim form submitted at this stage would be in breach of the Act.

14 September 2004 22. Mr Weller sent Sparke Helmore a letter requesting a claim form in respect of a claim for nervous shock (why this would be so after the correspondence of 27 July 2004 and 10 August 2004 is curious).

26 October 2004 23. The plaintiff had a counselling session with Kylie Lambeth, psychologist.

29 November 2004 24. The plaintiff had a further counselling session with Kylie Lambeth.

3 February 2005 25. The plaintiff attended Mr Weller to give further instructions "in this matter". No further detail was offered. I infer "this matter" refers to the claim for nervous shock.

16 February 2005 26. The plaintiff attended Mr Weller to give instructions and complete the claim form. Mr Weller says it was partially completed.

21 February 2005 27. The plaintiff attended Mr Weller to complete the claim form for nervous shock.

Mr Weller sent a fax to Jonathan Abbott & Associates concerning the Compensation to Relatives claim. Jonathan Abbott & Associates were the solicitors for the Ifields.

22 February 2005 29. The claim form for nervous shock was sent by Mr Weller to the insurer. The affidavit of Tanya Smart discloses that this was received by the NRMA on 24 February 2005. Mr Weller states that there was no medical evidence available at this stage. 30. A letter was received by Mr Weller from Sparke Helmore concerning answers to requests for further and better particulars and further particulars were requested. 31. A letter was received by Mr Weller from Sparke Helmore in respect of medical certificates forwarded in relation to the claim for nervous shock.

Mr Weller requested a medical certificate from Dr Stubbs.
The plaintiff attended counsellor, Kylie Lambeth.

28 February 2005 34. Mr Weller received a letter from the NRMA advising the claim for nervous shock had been received and registered. 35. Mr Weller sent a further letter to Dr Stubbs seeking a medical certificate.

2 March 2005 36. The plaintiff telephoned Mr Weller to discuss the claim for nervous shock.

21 March 2005 37. Mr Weller received a letter from the NRMA requesting the claim form be amended and a full and satisfactory explanation be given as to the delay in lodging the claim form for nervous shock. The affidavit of Tanya Smart annexes a copy of this letter. The letter asserted a number of questions on the form were unanswered and it specified them; it asserted that the accompanying statutory declaration needed to be re-sworn; it asserted that the claim form "will be" received past the statutory time limit; it drew attention to s72(1) of the MACA; and it set out the substance of what was required by s72.

31 March 2005 38. Mr Weller received a fax from Jonathan Abbott & Associates in respect of the Compensation to Relatives claim and further particulars were requested.

1 April 2005 39. The plaintiff delivered to Mr Weller a copy of a letter from the psychologist and a completed Certificate of Earnings of Jason.

4 April 2005 40. Mr Weller sent the above documents to the insurer.

5 April 2005 41. The plaintiff telephoned Mr Weller to discuss this matter.

7 April 2005 42. The plaintiff attended on Mr Weller to give further instructions in the nervous shock claim and to re-swear the amended claim form. Mr Weller sent the original, signed document to the insurer. I infer this is a reference to the re-sworn, amended claim form. The affidavit of Tanya Smart discloses that this was received by NRMA on 12 April 2005. 43. Mr Weller states that on this day, a medical certificate was received from Dr Stubbs. It is difficult to read. It diagnoses "anxiety/depression". It appears to record that the patient has had "anxiety/depression" since the motor vehicle accident and "frequent headaches (under investigation)". In the section dealing with "Refer to", it states "Grief Counselling … Hawkesbury District Health Service". In the section dealing with "fitness for work", it states, "on Newstart Allowance".

8 April 2005 44. The plaintiff attended his general practitioner and obtained and delivered a medical certificate to Mr Weller. Mr Weller forwarded it to the insurer.

18 April 2005 45. An appointment was arranged for the plaintiff to see Dr Robertson, psychiatrist.

27 April 2005 46. Mr Weller received a letter from NRMA confirming receipt of the claim form, requesting the original medical certificate and seeking a full and satisfactory explanation for the delay in lodging the claim.

Mr Weller responded by saying a reply would be given when instructions were received.

17 May 2005 48. Mr Weller received a letter from NRMA confirming receipt of the medical certificate and requesting a full and satisfactory explanation for the delay.

10 June 2005 49. The plaintiff attended Mr Weller to give instructions "in this matter".

16 June 2005 50. The plaintiff consulted Dr Robertson.

20 June 2005 51. Report of Dr Robertson. 52. The affidavit (para 41) states that a copy of the report was sent to the NRMA, but the only evidence of when this was is in paragraph 46 (9 September 2005) and 47 (25 October 2005).

29 June 2005 53. The plaintiff had an appointment with counsellor, Kate Carlin.

19 July 2005 55. Letter from Sparke Helmore to Mr Weller advising that they were acting for the insurer on the nervous shock claim.

6 September 2005 56. Mr Weller received a letter from Sparke Helmore requesting a full and satisfactory explanation. 57. Mr Weller sent a letter to Sparke Helmore advising a statutory declaration was being prepared.

9 September 2005 58. The plaintiff attended Mr Weller to give further instructions, but was unable to do so because of illness. Mr Weller's affidavit would suggest that that was Mr Weller's illness and that because of it, he could not see the plaintiff in conference from September 2005 until February 2006.

Mr Weller sent a letter to Dr Stubbs requesting a medical report.
Mr Weller sent a letter to Sparke Helmore advising that because of the plaintiff's condition, a full and satisfactory explanation was not provided, that a request for a report had been sent to the general practitioner and enclosing a copy of Dr Robertson's report.

25 October 2005 61. Mr Weller sent Dr Stubbs' report to NRMA, and also a report of Kate Carlin and a report of Dr Robertson;

15 February 2006 62. The plaintiff attended Mr Weller to complete instructions for a statutory declaration and signed it. The affidavit of Tanya Smart annexes a copy of this document and discloses that it was received by Sparke Helmore on 16 February 2006. It is, in substance, no different to the plaintiff's affidavit in this application.

Regrettably, this chronology, insofar as it is contained in the plaintiff's affidavit, does not set out the evidence in any helpful way. It is really in the form of a list of contents of the solicitor's file. Unfortunately, that is the way it appeared in the affidavit with no embellishment, not a document annexed and nothing, over the course of the chronology, as to the plaintiff's state of knowledge, information or belief. Following a further listing of the matter, Mr Weller's affidavit was served and read and it fills a number of gaps that had been left by the state of the evidence. I have dealt with parts of Mr Weller's affidavit in the above discourse.

The report of Dr Robertson was admitted into evidence (Exhibit 1A). I shall come to the report of Dr Robertson later.

The plaintiff gave some oral evidence. Some of this evidence merely confirmed what was in his affidavit and I shall not deal with that. He said that Dr Stubbs had prescribed him some medication for headaches and it was not effective. He was seeing Dr Stubbs for headaches from time to time and Dr Stubbs did not suggest to him that he might have had depression.

He said his treatment by counsellor, Kylie Lambeth, was of no help and made him worse and she did not suggest to him that he might have had depression. He discussed the grieving process with her.

He said that the claim form for nervous shock was completed in February 2005 and he did not know that he could make such a claim until his solicitor told him. He did not say when that was, but I note from what I have set out above that:

(1) on 27 July 2004, his solicitor sent a letter to Sparke Helmore requesting a claim form for nervous shock;

(2) on 10 August 2004, Sparke Helmore responded suggesting Mr Weller should seek the form from the Motor Accidents Authority and informing him that any claim now submitted would be in breach of section 72; (3) in August 2004, the plaintiff was aware that the insurer was making an issue of the claim for nervous shock being late;

(4) on 14 September 2004, Mr Weller sent to Sparke Helmore a letter requesting a claim form for nervous shock;

(5) the plaintiff's first conference with Mr Weller in respect of a claim for nervous shock was on 3 February 2005.

In the light of what I have set out in the previous paragraph, I think I should find that the plaintiff was aware that he might have had a possible claim for nervous shock in August 2004 and I do so find. This is consistent with Mr Boyd's submission that the first period to look at was April 2003 to August 2004, because up until August 2004, the plaintiffs were proceeding with the only claim they thought was available. (The reference to the "plaintiffs" here arises because there are two other claims arising out of the same accident to be dealt with. Judgment in those matters is being handed down following this matter.)

The plaintiff said that when he saw Dr Robertson, Dr Robertson advised him he had depression and he advised him to take anti-depressant medication. He then returned to Dr Stubbs and has since then been taking medication for his depression. He is not otherwise getting treatment for his depression because he considers it makes matters worse.

In cross-examination, he said that his counselling ceased a few months ago. He was having it with Dr Schultz.

Mr Nolan made the point in cross-examination that the plaintiff knew about the lateness of the claim in August 2004 when the matter was drawn to his solicitor's attention, that five months later, he attended upon his solicitor and that two months later again, the claim form was completed. When it was put to him in the context of paragraph 38 of his affidavit that he did not then (27 April 2005) provide an explanation, he said he "just done what he recommended at the time". I infer that he did what he was asked by his solicitor.

A line of cross-examination was undertaken on the premise (which I accept) that the plaintiff was aware that there was a problem by reason of the nervous shock claim being late. It was put to the plaintiff that, in light of that, the claim form was lodged in February 2005 without an explanation being provided. The plaintiff responded, "Probably not. I don't know." He accepted that in February 2005, the solicitor received a letter from the insurer requesting information and that no explanation for the delay had been given up until then. He accepted that on 6 September 2005, the solicitor received a letter from the insurance solicitors requesting a full and satisfactory explanation. He agrees "As far as I know, yeah" no explanation for the delay had been given up till then. It was then put to him that he was aware from August 2004 he had to provide an explanation for the delay and the answer was,

"…what's the difference? It was delayed anyway, so what's the mad rush? It was delayed anyway, so you still have to put it in, so you - all making it out my bloody fault when it's you bloody bastards over here delaying everything and makes it harder on us. Yous are the ones dragging it on all the bloody time. It's been four years nearly and it's still bloody going on."

In re-examination, he said he had been referred to Dr Schultz by Dr Stubbs after he had seen Dr Robertson. He said he was not aware of the need to put in a claim form within six months of the accident until a long time after. He was not aware that he had to provide a full and satisfactory explanation until over 12 months later, but he did not say when.

Tanya Smart 74. She annexed to her affidavit a copy of the Motor Accidents Personal Injury claim form of 21 February 2005 received by the NRMA on 24 February 2005. That document was re-sworn on 7 April 2005 and received by the NRMA on 12 April 2005.

Also annexed to her affidavit was a statutory declaration of the plaintiff by way of full and satisfactory explanation. It is in substance in identical terms to his affidavit.

On 6 April 2006, Sparke Helmore sent a letter to Mr Weller rejecting the explanation offered for the delay on the basis that it was not full and satisfactory.

Dr Robertson 77. Dr Robertson records a history consistent with the above account given by the plaintiff. He thought that the plaintiff had suffered a major depressive episode precipitated and perpetuated by the loss of his brother. He thought it was difficult to distinguish between a severe grief reaction and a major depression in the first six to 12 months after bereavement, but because the condition had progressed for three years, he thought this strongly indicated it was a depressive illness. Dr Robertson has a wrong time of injury (2002) and, accordingly, his history of the condition continuing for three years is wrong. I do not understand this to make any difference to his opinion, especially as he indicated the difficulty of distinction lies in the first six to 12 months.

The statutory provisions 78. In the context of the above evidence, I need to consider the applicable law.

"A claim must be made within 6 months after the relevant date for the claim." The relevant date in this case is 6 March 2003.

"(1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a 'late claim') if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer. … (4) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim." 81. Then there are some definition sections that need to be referred to.

"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." 83. Section 3 defines "claim" as follows:

" 'claim' means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle."

Analysis 84. The first issue for consideration is whether or not the plaintiff's claim has been made outside the six month period required by section 72. Until I raised this point, the whole of the proceedings proceeded on the basis that the claim was late, but section 3 had not been addressed. The plaintiff now wishes to advance the case that because notice was given in respect of the Compensation to Relatives claim that is good enough for the nervous shock claim. The requirement is to make a claim within six months after 6 March 2003.

The plaintiff's affidavit states that in April 2003, a claim form for a Compensation to Relatives claim listing the plaintiff as a dependant was sent to the insurer and the insurer acknowledged receipt of it. Mr Weller's affidavit states that a claim form dated 17 March 2003 was lodged by Brian Edwards on behalf of dependants of Jason including the plaintiff. A copy of the claim form was annexed to his affidavit, but it makes no reference to the plaintiff. However, I do not understand there to be any dispute about the appropriate claim having been made in respect of the Compensation to Relatives claim.

The question is whether such a claim suffices for the nervous shock claim. The plaintiff did not develop his submission beyond saying that the MACA does not contemplate that there be more than one claim. A claim has been made for damages and was made within time.

I do not accept the plaintiff's submission. Section 72 requires a claim to be made within six months of the accident date. Section 3 defines "claim" to mean a claim for damages in respect of the death of or injury to a person. The plaintiff's claim for nervous shock is a claim in respect of injury to him. A claim to that effect had not been made within six months of the accident date. This interpretation is consistent with the objects of the legislation which include the provision of compensation and the encouragement of early resolution of claims. Such an object would be impossible of attainment if a nervous shock claim could be lodged and satisfied by the provision of particulars relating only to a compensation to relatives claim.

I am satisfied that the plaintiff has a full and satisfactory explanation for the delay up until August 2004. He did not become aware that he might possibly have a claim for nervous shock until August 2004 and he did not become aware of a time limit issue in respect of the nervous shock claim until August 2004. I think his explanation up until 10 August 2004 is full and satisfactory. It is difficult to envisage how it could be otherwise in the circumstances of this case where the plaintiff was ignorant of any right to claim for nervous shock before August 2004.
From August 2004, in analysing whether there has been a full and satisfactory explanation, I bear in mind what Mason P said in Buller v Black (2003) 56 NSWLR 425 that "the explanation must pass muster on both counts" (434), that is it must be full and it must be satisfactory. In some circumstances, he pointed out, "it will be necessary to examine the conduct of the plaintiff's agents and this may throw up issues regarding the extent to which the plaintiff is affected by inappropriate dilatoriness of the agents" (p435).

From August 2004, there are gaps in the plaintiff's contact with Mr Weller. His contacts were as follows:

3 February 2005 - that is a gap of about 6 months; 16 February 2005; 21 February 2005; 2 March 2005; 1 April 2005; 5 April 2005; 7 April 2005; 10 June 2005 - that is a gap of about two months; 9 September 2005 - that is a gap of about three months; 10 February 2006 - that is a gap of about five months. This gap is explained by Mr Weller's illness. The evidence did not provide any detail about this illness and was simply allowed to rest as it was. I accept it as providing an explanation of that time gap. 91. As to the other gaps in the previous paragraph, I think it is important to realise that busyness is not necessarily a requirement for a full explanation. A person may sit idle for a long time. An explanation to that effect may be full because it explains all the person has done. It may not be satisfactory, but that is another point. Looked at in this way, I think it is fair to say that the plaintiff's explanation is full. I accept that it is full because I accept that it sets out all that the plaintiff did over this period and all that Mr Weller did.

In reaching the conclusion that the explanation is full, there is another matter I bear in mind. It has a substantial bearing on whether the explanation is satisfactory and I deal with it now. The matter is that the plaintiff was in the hands of his solicitor and was reliant on him. This is a point that has caused me some trouble in reaching a decision, especially as it has not been dealt with as specifically as it might have been in the evidence and the plaintiff had more than one opportunity to deal with it. I am also mindful of the statement of Gleeson CJ in Russo v Aiello (2003) 215 CLR 643 about indulging in speculation in this context. I make the finding that the plaintiff was reliant on his solicitor for the following reasons:

(a) the solicitor/client relationship is one that, of its nature, and I do not think there is anything to suggest to the contrary in this case, the client relies on the solicitor; (b) this view is enhanced, especially where the plaintiff is a relatively unsophisticated person with limited education and plainly ignorant of the requirements of the law in relation to his rights and the procedures necessary for their prosecution; (c) in answer to a question in cross-examination as to not providing an explanation, the plaintiff said, "I just done what he recommended at the time", plainly referring to his solicitor and indicating in that answer his reliance on his solicitor; (d) also, especially from January 2005 to August 2005, the plaintiff was having difficulty undertaking his work and was unable to continue working because of the sequelae of the accident and that appears to be supported by the report of Kate Carlin of 5 July 2005. Also during this time, the plaintiff was suffering from anxiety and depression. It was described as "severe anxiety and depression" by Dr Stubbs and "a major depressive episode" by Dr Robertson; (e) the anxiety and depression suffered by the plaintiff were not limited to the period discussed in (d) above. It is just that in that period, he happened to see Dr Stubbs and Dr Robertson. What they were diagnosing was not simply severe anxiety and depression or a major depressive episode at the time of their consultations, but a condition from which the plaintiff had been suffering since the accident as a result of Jason's death. 93. I am conscious of the absence of evidence from the plaintiff about his knowledge and belief. That absence is a most important factor, but it is not critical Smith v Grant [2006] NSWCA 244 (37-38).

The plaintiff had no practical way of confronting the problem. He was entitled to rely on what his solicitor was doing, even if his solicitor was delaying in what he was doing. The delays were not of a kind where some more drastic action might have been expected on the part of the plaintiff, for example, withdrawing instructions and retaining another solicitor. This course of action was one adverted to by Santow JA in Figliuzzi v Yonan [2005] NSWCA 290 (5).

Figliuzzi dealt with issues that arise in an application of this nature. The accident in that case occurred on 3 September 1997 whilst the injured person was driving to work. Under the Motor Accidents Act, she was required to institute proceedings by 3 September 2000. She did not. On 18 September 2003, she filed a Notice of Motion seeking leave to commence proceedings. To obtain that leave, she needed to provide a full and satisfactory explanation for the delay within the meaning of section 52 of the Motor Accidents Act, an equivalent provision to the one under consideration in this case. By majority (Tobias and McColl JJA) it was held that she failed to provide such an explanation. Santow JA dissented. The claimant in that case was employed as a clerk with the Legal Aid Commission. She had more or less daily contact with solicitors employed by the Commission. She also had contact with solicitors and barristers in private practice. The claimant had no doubt that the other party to the accident was responsible for it. She was off work for a time. She was interviewed concerning a claim for compensation and she was paid worker's compensation. She was never informed that she could bring a claim for common law damages and, because it was a worker's compensation case, she did not think that she could claim common law damages. It was not until 26 August 2002 that she consulted a solicitor and that was after a suggestion from one of her treating doctors. The solicitor advised her on 26 August 2002 that she had a claim for common law damages.

The emphasis in Figliuzzi was on the second limb of the definition section (section 40 of the Motor Accidents Act, the equivalent of section 66 of the Motor Accidents Compensation Act).

Tobias JA examined the second limb in some detail. He took from Russo v Aiello, another case dealing with this issue, a passage from Gleeson CJ adding some emphasis. I repeat that passage here with the same emphasis:

"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 has caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration." 98. In the trial of the motion in Figliuzzi, the trial judge found there was a full and satisfactory explanation for the delay. She specifically concluded that a reasonable person in the position of the claimant would have been justified in experiencing delay between 26 August 2002 (when she first saw the solicitor) and September 2003 (when the explanation was offered). She did not specifically deal with the period from 3 September 1997 (date of injury) to 26 August 2002 (when she saw the solicitor). This would normally require a re-consideration, but the parties agreed that the Court of Appeal should deal with it. It did so and, in the circumstances of that case, Tobias JA was of the view that a full and satisfactory explanation had not been provided. I do not need to go into the detailed reasons why that was so as this was essentially a decision on the facts of that case.

It seems to me there is a point of significant distinction between Figliuzzi and this case. In Figliuzzi, the Court of Appeal was largely concerned with the period from 3 September 1997 to 26 October 2002 - about five years - during which time the claimant did not have legal advice. In this case, the accident was on 6 March 2003 and the plaintiff saw his solicitor on 28 April 2003. He saw the solicitor for rights in respect of this motor vehicle accident. Precisely what rights does not matter. From that point in time, he was in the hands of his solicitor.

The distinction is important because a claimant who does not see a solicitor has the carriage and conduct of the matter in his or her own hands. Once the plaintiff was in the hands of his solicitor, there was little in a practical sense he could do.

So far as the second limb of the definition in section 66 of MACA is concerned, I am required to examine whether "a reasonable person in the position of the claimant" would have failed to comply with the duty or whether such a person would have been justified in experiencing the same delay. One thing pertinent, although not definitive, to the plaintiff's position in this case, was the fact that he was in the hands of his solicitor.

Having seen the solicitor on 28 April 2003, the plaintiff was in his hands in terms of the exercise of his rights arising from the accident. The plaintiff was not to know that different rights might arise from the accident, for example, rights under the Compensation to Relatives Act and rights to damages for nervous shock. Nor was he to know that time limits would apply to both sets of rights.

On 10 August 2004, he was aware of a potential time limit problem. At this stage, the solicitor was handling the matter and attending to the enforcement of whatever rights the plaintiff had arising from the accident. What was the plaintiff to do when he learned that the insurer was raising an issue about the nervous shock claim being late? In a practical sense, he could not take over the conduct of the matter or any part of it and nor would he have had the ability to do so. Withdrawing instructions and retaining another solicitor was not a realistic option and I am not satisfied the case had reached anything like the stage where that would have even been contemplated. The question properly asked is "would a reasonable person in the position of the plaintiff have failed to comply with the duty or would such a person have been justified in experiencing the same delay?" I think the answer to this question is "yes" as to both alternatives.

I note that in Figliuzzi in the context of whether the claimant should have made enquiries of a solicitor in the office where she worked, McColl JA said,

"I do not share Tobias JA's opinion that a reasonable person in the respondent's position would be expected to have made even an informal inquiry of one of the solicitors within the Legal Aid Commission, let alone one of the panel of barristers and solicitors in private practice used by the Commission, to determine whether her opinion was correct. To suggest the respondent, or a reasonable person in her position, may have made such an approach belies the inequality of the power relationships which, despite efforts to the contrary, would invariably exist between the professional and clerical staff in a legal organisation and, I have no doubt, in other similarly structured bodies." 105. The relationship between solicitor and client is not directly analogous to that being dealt with by McColl JA, but a solicitor is in a position of professional knowledge and expertise which a client does not have and, for that reason, the client needs to and does rely on the solicitor. Because the plaintiff was relying on his solicitor and because of his depressive condition, he was in no position to undertake any practical alternative. In the circumstances, I think his explanation is full and satisfactory. I think it does provide a full account of his actions, knowledge and belief. I think also a reasonable person in his position would have failed to comply with the duty and would have been justified in experiencing the same delay.

The majority view in Figliuzzi was that a reasonable person in the position of that claimant would have obtained legal advice. That raises a significant point of distinction I have made in this case and that is that the plaintiff did obtain legal advice. It was reasonable for him thereafter in the circumstances of this case to leave the conduct of the case to the solicitor.

Buller v Black (2003) 56 NSWLR 425 was a case where the claimant engaged a friend to conduct inquiries into his accident. He was aware of a six month time limit in which to make a claim. He did not press his friend to hurry his investigation. Giles JA thought there were delays in engaging his friend, in not hurrying up his friend for a report or engaging somebody else, delay in obtaining legal advice or following up legal advice. He thought there was not a full and satisfactory explanation in that case. Ipp JA agreed with Giles JA. Mason P dissented. Again, the difference between that case and this is that the plaintiff here had placed the prosecution of his rights in the hands of his solicitor.

The observation of Giles JA that a person with knowledge of the six month time limit "can not tarry" (p442) is an observation in the context of a claimant knowing of a time limit and not seeking legal advice.

The same matter that distinguishes Figliuzzi and Buller also distinguishes Russo. In that case, the claimant saw his solicitor 10 days after the accident on 11 January 1997 and was informed of the time limit for making a claim. Apart from receiving a letter from that solicitor in December 1997, there was no follow up or ongoing relationship with the solicitor. The plaintiff, apart from the matter mentioned, did not continue with that solicitor or any other solicitor until October 1998. He did not lodge his claim form until 26 March 1999. It was not a case where, as here, a solicitor was in charge of the prosecution of the plaintiff's rights.

The point of the distinction I have been making was brought home in Diaz v Truong (2002) 37 MVR 158. There, Hodgson JA held that the phrase "a reasonable person in the position of the claimant" meant that the focus is directed solely at the acts or omissions of the claimant himself or herself (p 177). This was in the context of a young, brain-damaged claimant and considerable delay by the solicitor. Hodgson JA added,

"Turning to the question of whether the explanation is "satisfactory", in my opinion there can be no shortcoming attributed to the acts or omissions of the opponent herself, and in those circumstances I do not think there is any error in the finding of the primary judge that the explanation was satisfactory." 111. Foster AJA took a somewhat different view. At p184 he wrote,

"Doing the best I can, I have come to the conclusion that the second sentence relates back to the words in the first sentence "the actions, knowledge and belief of a claimant" and requires that these be scrutinised according to a standard of "reasonableness". Where the claimant is out of time because is lawyer has allowed this to happen, then the claimant's activities, knowledge and belief must also be examined, to see if he has contributed to this situation. Has he, for instance, failed to answer his solicitor's letters, or changed his address without notifying his solicitor? Has he, having been advised by his solicitor as to the existence of the limitation period ignored the advice? Conversely, if he has been wrongly advised as to the extent of this period, are there circumstances which would have led a reasonable person to query the advice? Other examples can be envisaged. If the answers to such inquiries point to a failure on the part of the claimant to measure up to the standard of the "reasonable person", then that failure could require a finding that he was not "justified" in "experiencing" the delay, with the result that the delay cannot be satisfactorily explained. In this situation the words "in the position of the claimant" have work to do. Although in an unclear manner, they provide an indication of legislative intention that, in the application of the "reasonable person" standard, regard must be paid to the particular position of the claimant. If the claimant, because of his position, could not be expected to meet the measure of a "reasonable person", then this objective standard does not apply to him and the disqualification imposed by the second sentence upon his explanation does not arise. In my opinion, the opponent, who could never be regarded as "a reasonable person" does not encounter the particular disqualification provided for in the second sentence. Her explanation must still be assessed as to whether it is "satisfactory" in accordance with the first sentence, read with s 52(4B)(a). Having regard to the reasonable reliance of the family upon the solicitor's advice and the total incapacity of the opponent herself, I am satisfied that the explanation is satisfactory." 112. Giles JA disagreed with Hodgson JA. He wrote,

"Hodgson JA, whose reasons I have had the advantage of reading in draft, considers that in the second sentence the focus is directed solely at the acts and omissions of the claimant himself or herself, so that whether the explanation is satisfactory is judged against what would have been the acts and omissions of a reasonable person in the position of the claimant. I respectfully disagree. It does not seem to me congruent with the necessary reading of the two sentences together that the full account of the conduct which by the first sentence may provide the full and satisfactory explanation, the conduct being that of the claimant himself or herself plus that of others through whom the claimant is acting (typically but not limited to a solicitor), is in part disregarded when assessing whether the explanation is a satisfactory explanation. Nor do I think that the wording of the second sentence requires this narrowed focus. The second sentence sets an objective standard. A person can fail through someone else to comply with a duty, and can experience delay because of acts or omissions of another or others through whom the person is acting, (as I have said, experiencing something normally means being subjected to it by the acts or omissions of another or others). That the hypothetical reasonable person is a person in the position of the claimant leaves that person open to the consequences of the acts or omissions of another or others through whom the person is acting. … Applying the standard, and respectfully differing from Hodgson JA, I consider that the reasonable person in the position of the opponent is a person acting through the solicitors, and that the conduct of the solicitors is part of what is considered when assessing whether the reasonable person would have been justified in experiencing the delay. That reasonable person would not have been justified in experiencing the delay." 113. Smith v Grant was decided by the Court of Appeal during the currency of the hearing of this matter. In that case, the accident occurred on 8 December 1999 and proceedings needed to be commenced by 8 December 2002. They were not. The delay was occasioned because the plaintiff and her solicitor thought the matter was one that could be resolved by informal settlement or through the Motor Accidents Claims Assessment and Resolution Service (CARS) and activity was undertaken to seek to achieve that end. Time to institute proceedings, as a result, was allowed to expire.

In her affidavit in that case, the plaintiff said that her solicitor advised her that if she could not settle the case, it was best to proceed through the CARS process and "I instructed him to do what he thought was best". She also added, "At all times I have instructed [my] solicitor to proceed as he thought best with regard to my claim".

Basten JA delivered a judgment in which Handley and McColl JJA agreed. He noted that the insurer's complaints as to the plaintiff's conduct gave "rise to an issue as to whether an application for an extension of time is required to give a 'full' explanation of dilatory conduct of her solicitor" (para 30). At para 32, he wrote,

"… 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 which '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." I do not consider that there was delay of a kind that might have induced the plaintiff in this case to seek an explanation. 116. At para 60, Basten JA wrote,

"…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 [2006] NSWCA 51 at [22]…" For reasons I have already explained, I think the plaintiff was relying on his solicitor and was entitled to do so.

Conclusion 117. For reasons given above, I think the plaintiff has given a full and satisfactory explanation for the delay. His account includes the following.

(1) The plaintiff did not know about being able to make a claim for nervous shock until his solicitor advised him. The evidence is not clear as to when that was. It was probably August 2004 when the plaintiff first learned of the possibility of a claim for nervous shock. In August 2004, the plaintiff was aware the insurer was raising a failure to comply with a time limit as to the making of a claim for nervous shock. The plaintiff thought his position was being protected.

(2) I find that the explanation for delay up until August 2004 is full and satisfactory. It can hardly be otherwise if the plaintiff did not know he had a claim or even the potential for a claim up until then.

(3) The plaintiff started seeing his general practitioner, Dr Stubbs, a few months after the accident for headaches. Dr Stubbs did not suggest he had a depressive condition or treat him for such until some later time.

(4) It was not until October 2004 that he first saw a person for his nervous condition. That was Kylie Lambeth and was on referral by his solicitor. That was a form of counselling and it proved to be of no help. The grieving process was discussed with Kylie Lambeth, but there was no suggestion of a depressive condition.

(5) At a later time (October/November 2004), the plaintiff was receiving counselling from Kylie Lambeth with no suggestion he was suffering from a depressive condition. It was not until he saw Dr Robertson in June 2005 that he was told that he had a depressive condition and, thereafter, he has been on medication for it under Dr Stubbs. That medication has needed changing a couple of times.

(6) Thereafter, the plaintiff attended counselling sessions in October and November 2004 and February 2005 and, in February 2005, attended on his solicitor and his general practitioner and the solicitor, perhaps in a dilatory way, was undertaking steps in prosecution of the claim. The steps deposed to by Mr Weller were getting reports from Kate Carlin, Dr Stubbs and a medico-legal report from Dr Robertson.

The evidence might have been more complete, but I infer that for the progress of his claim, the plaintiff was in the hands of his solicitor and relying on him for that. The material I have set out in paragraph 92 supports this.
The plaintiff was entitled to rely on his solicitor and I find that his explanation for the delay after August 2004 is full and satisfactory.
A reasonable person in the position of the plaintiff would have failed to comply with the duty under the MACA and would have been justified in experiencing the same delay.
I dismiss the defendant's motion and order the plaintiff to pay the defendant's costs of and incidental to the motion.

Mr T Boyd and Mr D Williams, instructed by Herbert Weller, appeared for the plaintiff. Mr P J Nolan, instructed by Sparke Helmore, appeared for the defendant.

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.

CITATION: Butler v Greenaway [2007] NSWDC 126

Buller v Black (2003) 56 NSWLR 425 Russo v Aiello (2003) 215 CLR 643 CASES CITED: Smith v Grant [2006] NSWCA 244 (37-38) Figliuzzi v Yonan [2005] NSWCA 290 (5) Diaz v Truong (2002) 37 MVR 158

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