Chapman v Gibbo's Transport Pty Ltd & Ors

Relevant Legislation

1. Section 109 of the MACA 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 Commission 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. Section 66 (2) of the MACA defines the phrase "full and satisfactory" as follows:- 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.

The Plaintiff's Evidence

1. The plaintiff relied on four affidavits which were read without objection in the proceedings. The first was of his solicitor John Hamish Giles Finney affirmed on 22 August 2022. The second and third were affidavits of the plaintiff affirmed on 10 August 2022 and 11 January 2023. The fourth affidavit was of the plaintiff's wife Heidi Chapman affirmed on 15 February 2023. Each of the deponents was cross-examined. A letter of Mr Finney to the third defendant's solicitor dated 8 February 2023 was also tendered by the plaintiff.
2. In his affidavit, Mr Finney set out the entire procedural history of the matter. Relevantly, after being airlifted from Orange Base Hospital to Westmead Hospital on 1 August 2016, the plaintiff underwent a right frontotemporal craniotomy and an acute subdural haematoma was evacuated and an external ventricular drain was inserted. He suffered a traumatic brain injury, intracerebral contusions, a temporal bone fracture and lacerations and bruising. He was discharged on 24 August 2016 and admitted to Mount Wilga Rehabilitation Hospital where he remained until October 2016. He suffered a long period of post traumatic amnesia. He has remained under the care of various specialist and para-medical professionals.
3. The plaintiff's wife first attended Mr Finney's office on 21 August 2016, when the plaintiff was still in Westmead Hospital. When cross-examined about that visit, Mr Finney said that he had a conversation about possible avenues of claim including a workers' compensation claim, a common law claim and a motor accidents claim. He believed that he discussed the need to submit a motor accidents claim form within 6 months, which he agreed was the initiating document for a compulsory third party (CTP) claim. An email that was sent to Mrs Chapman on 24 August 2016 contains some brief advice (with no mention of any time limits) and which attached a "Green Slip Personal Injury Claim Form", which was not completed. On 3 April 2017, a very brief follow up email was sent to Mrs Chapman by Mr Finney. Mrs Chapman did not reply. On 25 July 2017, another brief follow up email was sent to Mrs Chapman by Mr Finney which included the sentence "There are various time limits applicable and I can run through those with you if needs be". Mrs Chapman did not reply. In cross-examination Mr Finney said that he was fairly sure that he had not spoken to Mrs Chapman about time limits in terms of commencing proceedings and was only concerned that a claim form had not been lodged. Mr Finney gave evidence, which I accept, that at the time there was nothing to suggest that the accident was anyone other than Mr Chapman's fault and that the claim form was a "prophylactic measure".
4. On 21 August 2018, the plaintiff and his wife attended Mr Finney's office. A letter dated 23 August 2018 was sent to the Chapmans after that meeting and was annexed to Mrs Chapman's affidavit. It makes no mention of a motor accidents claim, but rather focuses on a workers' compensation claim and by inference, a common law claim against the employer. In cross-examination, Mr Finney recalled having a discussion with the plaintiff and his wife about the viability of a CTP claim. Mrs Chapman told Mr Finney that she had not completed the claim form. Mr Finney expressed the view then that a CTP claim was not a realistic proposition because the plaintiff had been the single vehicle driver who had rolled over his vehicle, and that the time limit for submitting the claim form had passed. He could not recall talking to the Chapmans about time limits generally. Indeed he said that he had never communicated to them that there was a three year time limit with respect to a claim pursuant to the MACA.
5. I accept that Mr Finney gave his evidence candidly.
6. In due course the plaintiff received lump sum compensation, and proceedings were commenced against his employer for work injury damages in April 2020. Documents were produced on subpoena in those proceedings which caused Mr Finney to brief an expert and the second defendant was then joined to the proceedings. The second defendant would not consent to unlimited jurisdiction of the District Court and the matter was transferred to the Supreme Court in mid 2021. In July 2021 the second defendant served an amended defence which did not raise the MACA point. On 30 November 2021, the second defendant first raised the MACA point in correspondence. On 20 January 2022, Mr Finney sent an email to the Chapmans (annexed to Mrs Chapman's affidavit) which was the first time that they were apprised of the second defendant's revised position that the MACA applied.
7. In her affidavit, Mrs Chapman says that a workers' compensation form was lodged on behalf of her husband by the second defendant on 4 August 2016 after which he began receiving weekly payments of compensation. She agreed that she met Mr Finney at his office in Gosford on 16 August 2016. In cross examination, Mrs Chapman agreed that different options were discussed at that meeting and that a CTP claim was one of those options. Her recollection was that it was in August 2018 rather than 2016 that Mr Finney expressed a view that a CTP claim was not viable. She did not recall any discussion about time limits. She said that the first meeting was purely "advisory" and that she was not then in a fit state to seriously consider any advice, which I accept.
8. During 2017, Mrs Chapman was attending to her husband's and her children's needs. They moved house. She was working 3-4 days per week. In cross-examination, she recalled receiving the follow up emails of April and July 2017 but could not recall reading anything at all about time limits.
9. On 21 August 2018, Mrs Chapman attended Mr Finney's office with her husband. She said that she was given advice then that as her husband was the only driver in the accident, a "green slip" claim was not viable as the system was fault based, and as her husband was driving the vehicle at the time and there were no other drivers involved, a claim would not be worthwhile. She received the email of 23 August 2018 referred to above. Mrs Chapman says that she did not discuss a "green slip" claim with anyone until she received the letter from Mr Finney dated 20 January 2022 referred to above.
10. In cross-examination, Mrs Chapman said that during the meeting of 21 August 2018, the option of a CTP claim was discussed but that she was told that it was not viable. She accepted that advice. There was no discussion about whether a claim could be made out of time.
11. In my view, Mrs Chapman gave her evidence frankly.
12. The plaintiff's affidavits were read. They annex a great deal of medical and financial material. He could only vaguely recall signing those documents. In cross-examination the plaintiff said that he had no recollection about what had occurred in the meeting of August 2018, that he could not honestly say if a motor accident claim was mentioned and that he relied on his wife to explain what had happened after meetings with his lawyers. There was no suggestion that his lack of memory was inconsistent with the brain injury he suffered in 2016.

The Third Defendant's Evidence

1. The third defendant relied on one affidavit which was read in the proceedings, that of its solicitor Mr Ian Jones of Sparke Helmore Lawyers sworn on 19 October 2022. He was not cross-examined by Mr de Meyrick. The affidavit contains several annexures including a Severe Injury Advice Form pursuant to the Lifetime Care and Support Scheme and applications for participation in that scheme on an interim and lifetime basis. In the end nothing turns on these documents. Mrs Chapman was not cross-examined about them and no submissions were made that they went to the satisfactoriness or otherwise of the explanation for the delay.
2. In addition, three documents sent to Mrs Chapman by Mr Finney (dated 24 August 2016, 3 April 2017 and 25 July 2017) upon which Mrs Chapman was cross-examined were tendered by Mr Catsanos. Finally, a letter from Mr Jones to Mr Finney dated 20 February 2023, in reply to Mr Finney's letter of 8 February 2023 was tendered by the third defendant.

The Plaintiff's Submissions

1. Mr de Meyrick provided an outline of written submissions on which he relied. That document was prepared prior to the third defendant's concession with respect to the fullness of the explanation for the delay. In oral argument, he submitted that in August 2016, neither the plaintiff nor his wife were engaged as clients, which did not occur until August 2018. He said that in 2016 Mr Finney wrote that further investigations would need to be conducted about the accident and its cause, and that the provision of a claim form was part of an initial and cautious "scatter gun" approach. He further submitted that at the time of the first conference in 2018, Mr Finney had formed a not unreasonable view that because the accident was a single car rollover, where no fault could be attributed to another driver, a CTP claim was not viable. Indeed, Mr de Meyrick submitted that until the second defendant came to the view that its CTP policy might respond to the accident, no person held such a view. Thus, a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.
2. As to the question of election, to which see below, Mr de Meyrick submitted that Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 (Itek) had no application, as in that case the claimant made a conscious and deliberate decision based on legal advice to let the limitation period expire. Further, he submitted that in this case the only decisions were made by the plaintiff's wife as the "controlling mind", and that the cases show that the focus must be on the claimant himself as the reasonable person. He submitted that it was clear that Mr Chapman cannot recall ever being told about bringing a motor accident claim and so he cannot be said to have ever made a conscious decision about foregoing one.
3. Relevantly, in his written submissions, Mr de Meyrick said that in the circumstances of this particular case, the plaintiff has demonstrated that it is fair and just that leave should be granted.

The Third Defendant's Submissions

1. Mr Catsanos submitted that the guiding contemporary principles with respect to determining whether or not an explanation was full and satisfactory are to be found in Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 (Walker) when the Court of Appeal sat a bench of five to reconcile what were perceived to be inconsistencies in approach to the question of whether there was a full and satisfactory explanation for a delay pursuant to s 66(2) of the MACA. It is common ground that those principles have been applied on many occasions in cases that are largely "fact sensitive". For example, in Karambelas v Zaknic (No 2) [2014] NSWCA 433 (Karambelas), Meagher JA (with whom Basten JA and Simpson J agreed) said at [16]-[17]:- [16] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. 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 a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing. [17] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made. [emphasis added].
2. In a recent decision of 26 October 2022, Stein v Ryden [2022] NSWCA 212 (Stein), Griffiths AJA, with whom Macfarlan and Gleeson JJA agreed, applied both Walker and Karambelas. At [32] to [39], his Honour provides a helpful survey of the authorities on the topic of what constitutes a full and satisfactory explanation for a delay.
3. In this matter, it is apparent that whilst no tutor has been appointed, the plaintiff has relied upon his wife to make decisions for him, at least in the context of this litigation. He had no real recollection of any meeting with his solicitor and his cross-examination was therefore appropriately brief. In these circumstances, Mr Catsanos says that the court must rely upon the evidence of Mrs Chapman to make a determination as to the satisfactoriness of the explanation or otherwise, and he relies upon the comments of Allsop P in Walker at [97] to [101]:- [97] As I have already said in discussing the text of these provisions, the "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are. [98] The parent or legally appointed guardian will have responsibilities and rights in the discharge of the affairs of the minor. It is unnecessary to deal with this topic at length. The sources of parental power were discussed by the High Court in Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 235-254. A parent is obliged to provide for the maintenance, protection and education of the child: Marion's Case and see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 183-184. Likewise legal guardianship carries with it legal responsibility: see generally the Guardianship Act 1987 (NSW). [99] To the extent that one or more persons have legal authority and responsibility to act for or in the relevant interests of a claimant, the closeness of the identity of such person or persons with the claimant may necessarily see them as part of the reasonable person or identified with or as the claimant in the process of assessing the justifiability of experiencing the delay, under s 109. [100] Others without such authority and responsibility (such as Mr Howard's mother and sister) are not so close to the claimant as to be part of the objectified person, nevertheless they and their actions may form part of "the position" or circumstances of the claimant. [101] It can be accepted that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the "position of the claimant" and by the recognition of any responsible (in the sense I have discussed) parent or guardian that the claimant may have. To the extent that the test requires the subjection of the reasonable person in the position of the claimant to the circumstances in the full explanation and a "justification" of experiencing them, such a constraint demands a normative evaluation involving cognitive consideration. The evaluation must be made even though the claimant may be brain-damaged. That is to be accepted as the operation of the objective analysis. The brain damaged condition of the claimant is not irrelevant. He or she may still be helpless and unable to look after his or her interests. This will be important in the assessment as to whether a reasonable person in his or her position would have been justified in experiencing the delay.
4. I accept that in the circumstances of this case, notwithstanding that there has been no tutor appointed, I must also look to the evidence of Mrs Chapman in making a determination about whether the explanation proffered has been satisfactory such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. She has at all times been acting on her husband's behalf because of the effects of his brain injury suffered at the time of the accident, which effects are continuing. So much was conceded by the plaintiff, his wife and Mr Finney.
5. Mr Catsanos submitted that the plaintiff, through his wife, had made a conscious election not to pursue a MACA claim. The nub of his argument was that the plaintiff (through his wife) had consciously made a deliberate and informed decision in the period August 2016 to August 2018 to pursue his rights pursuant to the Workplace Injury Management Act 1998 (as against the first defendant) and the Civil Liability Act 2002 (as against the second defendant) and could not now elect to also pursue his rights pursuant to the MACA (as against the third defendant). In fact, those decisions came later: in April 2020 as against the first defendant, and October 2020 as against the second defendant.
6. In particular, Mr Catsanos relied upon the comments of Handley AJA (as his Honour then was) in Walters v Cross Country Fuels Pty Limited [2009] NSWCA 10 (Walters) at paras [37] to [40], where his Honour discussed the issue of election in the context of the principles set out in Itek as follows:- [37] I agree with both the previous judgments. I would only add for myself some brief supplementary remarks. In Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, 225 Ipp AJA giving the principal judgment of this court said: "A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant grant of leave. There is ample authority to this effect." [38] In the present case there is no evidence that the Applicant was informed of the relevant limitation period, but she was informed of her alternative rights at common law and under the Workers Compensation Act. She consulted solicitors within a few weeks of her fall. She was advised to pursue her statutory rights and she accepted that advice. Apart from one letter of demand in April 2001 nothing was done to pursue a common law claim until nearly three years after the limitation period had expired. [39] In May 2003 her then solicitors stated in a letter to the workers compensation insurer that the Applicant was not pursuing a common law claim. There is no reason to doubt that she had made a decision to that affect. That was still the position when the limitation period expired in March 2004. The intended defendant heard nothing about the common law claim until the letter of demand of January 2007. [40] The Applicant's decision in this case, on advice, was to pursue her statutory rights rather than her common law rights. That is her explanation for the failure to bring common law proceedings within the limitation period. Such an explanation is, to say the least, a most unpromising basis for an extension of time. In my judgment, the principle applied by the court in Itek Graphix Pty Ltd v Elliott is of some generality and does not depend on a deliberate decision with knowledge of the precise limitation period prior to its expiry. Rather, it depends on a deliberate decision on legal advice that proceedings should not be commenced at common law that is adhered to until after the limitation period had expired.
7. Itek was a case concerning an extension of time pursuant to s 151D(2) of the Workers' Compensation Act 1987. There the plaintiff made a deliberate decision, after receiving full legal advice from her solicitor and barrister on the issue, to allow the three year period pursuant s 151D(2) to expire. She then delayed a further two years before changing her mind. Ipp AJA, (Spigelman and Sheller JA agreeing, the latter with additional remarks) said at [98]:- In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.
8. Walters was a case concerning the application of ss 60C and 60E of the Limitation Act 1969. Campbell JA gave the lead judgment. Allsop P agreed with brief additional comments, as did Handley AJA. There the plaintiff filed a statement of claim almost 6 years after she had a slip and fall accident at a service station on her way to work. She received advice from a solicitor immediately after the accident who alerted the manager of the service station of the accident, and in 2003 exercised her rights with respect to workers' compensation. Shortly thereafter, the solicitors wrote to the workers' compensation insurer to the effect that she would not pursue the service station's public liability insurer. New solicitors were engaged in 2006 and a letter of demand was sent to the then manager of the service station. Proceedings were commenced in 2007. Her former solicitors never advised the plaintiff about the existence of any limitation period, so that it could not be said that the plaintiff had made a deliberate decision to let it expire. The court agreed that the trial judge had correctly found that the defendant had suffered significant actual prejudice because of its inability to locate the one eyewitness and the vagueness of the memory of the service station manager.
9. Mr Catsanos referred in passing to Nominal Defendant v Harris [2011] NSWCA 70; 57 MVR 492, which is a judgment of Whealy JA with whom Hodgson and McColl JJA agreed. In that case his Honour said at [51]:- Handley AJA was clearly conscious that, in Itek Graphix , Ipp JA at paras [91] and [98] had examined a factual situation where an applicant for an extension of time had made a deliberate decision to allow a statutory limitation period to expire. I do not, however, understand Handley AJA to be saying anything more than that, even in a situation where the applicant does not know of the precise limitation period, but nonetheless makes a deliberate decision not to sue prior to its expiry, that decision will ordinarily operate as a formidable factor against the grant of the application. That is plainly correct. Once again, however, it will not dictate automatic refusal. All the circumstances will need to be considered.

Consideration

1. In my opinion, the present case is clearly distinguishable from Itek. Here, neither Mr or Mrs Chapman was given full and comprehensive legal advice about a motor accident claim or relevant limitation periods, so that it cannot be said, on the evidence before me, that a deliberate decision was made to allow a statutory limitation period to expire. Even if that were the case, I observe without deciding, that the fact central to this application for leave - the belated pleading of the second defendant - may well amount to "special circumstances" satisfactorily explaining the conduct of the plaintiff mentioned by Ipp AJA in Itek at [98].
2. So far as the comments of Handley AJA in Walters are concerned, they were strictly obiter and are to be understood in the context of the facts of that particular case. In any event, in my opinion there was no deliberate decision not to sue pursuant to the MACA made by either Mr or Mrs Chapman.
3. Further, this is not a case about an election and in that sense, it is distinguishable from both Itek and Walters. Rather, it concerns pleading a cause of action in addition to two that are already pleaded.
4. In my opinion, taking into account the evidence before me, neither the plaintiff nor his wife were ever provided with full advice about making a claim pursuant to the MACA. Mrs Chapman was only aware - in August 2018 - about the time limit for forwarding a claim form. Mrs Chapman was then told that a "green slip" claim was not viable. Indeed, until January 2022, when the Chapmans were informed about the second defendant's belated view that the MACA might apply, neither the claimant nor his wife had any advice, idea or information about the possible applicability of the MACA to the proceedings. I observe that up to November 2021, notwithstanding the involvement of many experienced solicitors and barristers over several years, no lawyer had ever considered that the MACA might apply to the instant proceedings. This fact, in the circumstances of this case, in my view is crucial in the assessment as to whether a reasonable person in the plaintiff's position would have been justified in experiencing the delay. The plaintiff is essentially compelled to now join the third defendant, which he did expeditiously and without prejudice being occasioned to it.
5. It follows that in my view, by reference to an objective standard and given Mr Chapman's position, the delay that has occurred is reasonably justifiable: see Karambelas per Gleeson JA at [19]. I am therefore satisfied that the plaintiff has provided a satisfactory explanation within the meaning of s 66(2) of the MACA. It is just and reasonable for leave to be granted to commence the proceedings.

Costs

1. Mr de Meyrick submitted that costs should follow the event and that the plaintiff should have his costs of bringing the motion. His fallback position was that costs be costs in the cause.
2. Mr Catsanos submitted that the third defendant should have its costs, first because the plaintiff was seeking the indulgence of the court and second, because up until about midday of the hearing, it could not be said that the explanation was full, leaving to one side the issue of whether the explanation was satisfactory. I reject the first submission. Since the advent of the Civil Procedure Act 2005, plaintiffs will often if not usually get costs on such an application. Stein, mentioned above, is such an example. However, in my view there is some force to Mr Catsanos's second submission. I agree that until the cross-examination of Mr Finney and Mrs Chapman (upon documents which were tendered in evidence), the explanation given was not full. Therefore, in my view the plaintiff ought not to have his costs of the motion.
3. The first defendant submitted that their costs should be paid for by either the second or third defendant and the second defendant submitted that its costs should be paid for by the third defendant. Each of Mr Parker and Mr Parker SC expressed a fallback position that costs be costs in the cause.
4. In an effort to do justice between all of the parties, I order that costs of and incidental to the plaintiff's motion be costs in the cause.

Orders

1. I make the following orders: - 1. Leave is granted to the plaintiff to proceed pursuant to section 109 of the Motor Accidents Compensation Act 1999. 2. Costs of each party be costs in the cause. 3. The matter is stood over to the registrar's callover on 13 March 2023. 4. The third defendant is to file its defence within 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 March 2023