Cole-Herring v Bourke

The plaintiff's contact with lawyers and knowledge of the relevant time provisions

1. The plaintiff is a simple young woman who left school at Year 10. She has little work experience, having worked for her father briefly prior to her diagnosis with leukaemia. She knew nothing about motor vehicle accident time restrictions or, for that matter, about personal injury claims of any kind. She lives in a remote country town, where the family is obliged to have a post box because mail is not delivered to her home. She is unfamiliar with information technology and, at the time of the accident, did not even have an email address. When she decided (whether as a result of talking to her uncle or independently of her own volition) to seek legal advice, she used not only her mother's computer but her mother's email address. She googled the names of personal injury lawyers and selected one at random.
2. The plaintiff's lack of sophistication can be seen by the unbusinesslike way that she set out details of the accident in the message she sent to the solicitors she chose: "I had a car accident, which was no fault of my own. The other driver crossed the road which made the car roll, I had a fracture in my spine I spent 6 weeks in a back Brace [sic] and still suffer terrible pain. I have had leakamia [sic] and have had a double knee & one hip replacement and was told I would never have children and the best thing has happened I am pregnant and will need financial support to help me look after my baby. My mum & dad have been with me every step of the way and they also have been to hell and back. Thanks Emily"
3. The plaintiff described in her statutory declaration what she was told by Ms Cara Walsh, the solicitor she had contacted: "35. …Cara Walsh advised me that I had legal rights to claim, but that I needed to complete a CTP claim form and medical certificate. Cara Walsh also advised me that she would send me some general information about the claims process. However, there was no discussion of limitations or time limits in either our discussions or correspondence. In the coming weeks, I received Cara's [sic] Walsh's letter to me dated 14 march [sic] 2016. Annexed to this document and marked with the letter "A" is a copy of Cara's [sic] Walsh's letter to me." (Paragraph 35 of plaintiff's statutory declaration)
4. Cara Walsh's letter of 14 March 2016 is in the following terms: "We refer to your conversation with the writer on even date in relation to a potential motor vehicle accident claim for an accident that occurred in April 2014. We enclose the following: 1. Blank authorities 2. Claim form We confirm an appointment has been made for you to confer with the writer by telephone of [sic] 22 March 2016 at 1pm to discuss your claim. Please send any documentation you have relating to the subject accident by return post, for which an envelope has been enclosed. We look forward to speaking with you. Should you have any questions please do not hesitate to contact the writer."
5. There was no mention of any limitation period for providing information in this letter. I am satisfied that Ms Walsh never mentioned it to the plaintiff.
6. Ms Walsh did nothing further about the plaintiff's case. The evidence was that the plaintiff's file was left on a window sill in the office, where it was discovered by another employee, Ms Ness, who rang the plaintiff on 11 July 2016. The conversation with Ms Ness is set out at paragraph 48 of the plaintiff's affidavit as follows: "48. On 11 July 2016 I remember receiving a telephone call from Ms Kristel Ness, a solicitor from CMC Lawyers. I remember discussing with Ms Ness the circumstances of the accident. Ms Ness said to me words to the effect of: "You had six months from the date of the accident within which to lodge the claim form. Do you have the registration plate number of the vehicle that caused the accident?" I answered: "No." Ms Ness said to me words to the effect of: "You will need to find out those details from the Police before we can lodge the claim form." Ms Ness also said to me words to the effect of: "You should scan and email a copy of the claim form to me along with any medical reports you have."" (Paragraph 48 of plaintiff's affidavit)
7. The plaintiff described what happened after that date as follows: "38. On or around 15 July 2016, I received Kristel Ness's correspondence dated 11 July 2016. I then took immediate steps to complete the claim form and medical certificate. 39. On 15 July 2016, I emailed Kristel Ness my partially completed claim form and medical certificate. 40. On 15 July 2016, Kristel Ness emailed me to advise that my claim form was not complete and was incorrectly dated with my date of birth (rather than the day I signed the claim form). 41. On or around 8 August 2016, Kristel Ness wrote to me to advise me that my claim form was not completed correctly and asked that I complete all questions on the claim form." (Paragraphs 38-41 of plaintiff's statutory declaration)
8. The plaintiff's inability to perform these simple tasks was partly due to her inexperience with any business matter and partly due to her health problems. In addition to her leukaemia-related disabilities and her back injury, she was in a state of acute mental and physical distress in August 2016 for pregnancy-related reasons. The plaintiff had been advised that the baby would have to be given methadone after being born because his ingestion of the methadone during the pregnancy had caused him to become dependent on it and she had been endeavouring to reduce her methadone level. In addition, she was advised she could not give birth naturally because of her hip. The plaintiff had to undergo an emergency caesarean section as she was experiencing renal failure. The child was born on 12 August 2016.
9. The plaintiff remained in hospital for some three to four weeks, as well as the new baby, who was being treated for methadone withdrawal after being transferred to a special nursery at Dubbo Hospital where he remained for a further three to four weeks. The plaintiff was in hospital with him every day until returning home at about the end of September or early October 2016.
10. During this time the plaintiff had difficulties with Austin's father, who would come to the hospital and argue with her. The plaintiff was no longer in a relationship with him. These arguments with the child's father continued after she returned home to live with her parents and caused her distress.
11. After the plaintiff returned home with her child at the end of September or the beginning of October, she was able to return the focus of her attention to progressing her claim for compensation and on 4 November 2016 she wrote to her solicitors in the following terms: "Hi Kristel, Sorry I've taken so long to return this paperwork. I have been on a big rollercoaster ride, had to have emergency C-section as I went into renal failure and spent a month in Orange Base Hospital where Austin (my son) was born and then transferred to Dubbo Base Hospital for a further month, then eventually home which we had to travel with baby to specialists with further complications. I am home now and have finally been able to go through my mail and respond. I have posted over documents in express post envelope today. Cheers Emily" (See paragraph 63 of plaintiff's affidavit)
12. The plaintiff continued to suffer difficulties over the next few months. On 22 November 2016 her grandmother, with whom she had been very close, died. Her grandmother lived very close by and had been an important figure in her life. The plaintiff and her family were all distressed by this unexpected event. Then, on 18 December 2016 she was arrested for shoplifting. She did not seek legal advice about this. I draw inferences from the penalty (a fine of $250) as to the seriousness or otherwise of this offence. She was, unfortunately, not legally represented. It is the plaintiff's only offence of dishonesty.
13. The plaintiff was anxious that, as a result of the criminal proceedings, she could lose her child to the Department of Community Services, who were keeping her under supervision. Although she received only a fine by way of penalty on 23 February 2017, that was not the end of those anxieties. She eventually completed the necessary forms in April 2017. This was defective and had to be re-executed. This process took until 30 June 2017.

The issues for determination

1. When determining whether the explanation is "full", the relevant time periods must be identified. In the present case, there are two particular periods, namely the period from six months after the accident until the plaintiff first sought legal advice in March 2016 and the period from the plaintiff's conviction in the Bourke Local Court on 23 February 2017 to the completion of the statutory declaration on 26 April 2017. The defendant also submits generally that, apart from the time the plaintiff was in hospital in relation to the birth of her child, the explanation is not "full" in the accepted sense of the word.
2. In relation to the issue of whether the explanation is "satisfactory", the defendant submits that this relates to the whole of the plaintiff's explanation.

The relevant statutory provisions

1. Section 66 Motor Accidents Compensation Act 1999 (NSW) ("the Act") provides: "66 Definitions (1) In this Chapter: "insurer", in relation to a person, means the insurer who insures the person against the person's liability for damages in respect of a claim, whether or not under a third-party policy, and includes: (a) the Nominal Defendant, and (b) where a claim is handled on behalf of an insurer by another insurer, the other insurer. (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."
2. Section 72 of the Act provides: "72 Time for and notice of making of claims (1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (2) A claim is made by giving notice of the claim as follows: (a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer, (b) in any other case, to the person against whom the claim is made. (3) The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if: (a) that person is dead, or (b) that person cannot be given notice."
3. Section 73 of the Act provides: "73 Late making of claims (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. (2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless: (a) the insurer has lost the right to reject the claim on the ground of delay, or (b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (4) The insurer loses the right to reject a late claim on the ground of delay if the insurer: (a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or (b) does not, within 2 months after receiving an explanation for the delay, reject the explanation. (5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay. (6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay. (7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim. (8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made."

The relevant principles

1. Counsel for the defendant refers me to the principles for a "full and satisfactory" explanation set out in Karambelas v Zaknic (No 2) (2014) 69 MVR 127 at [15]-[17]: "[15] Section 73 permits a claim to be made more than six months after the date of the accident if the claimant provides a full and satisfactory explanation for the delay. That explanation has to be provided, "in the first instance", to the third-party insurer. Although its provision is the condition that must be satisfied to enable the making of the late claim, s 73(1) does not expressly require that the explanation be given at the time the late claim is made and s 73(4) contemplates that the explanation to be provided "in the first instance" to the insurer may be given after the late claim has been made. [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. Second, 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 6 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) 64 MVR 214; [2013] NSWCA 197 at [15]-[16] per 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."
2. As to whether the explanation is "full", the court may have regard not only to the plaintiff's explanation but any explanation of the delay by reason of the acts (or omissions) of the legal practitioners acting on her behalf: Walker v Howard (2009) 78 NSWLR 161. The approach generally taken by trial judges is that set out by Hansen J in Curnow v Roman Catholic Trust Corp Diocese of Melbourne [2006] VSC 364 at [36], where Hansen J stated that "the sins of the solicitors should not be visited upon the client in circumstances where the client not unreasonably leaves the matter in the hands of apparently competent solicitors" (see also Smith v Grant (2006) 67 NSWLR 735 at [60]).
3. In relation to the explanation being "satisfactory", what is required is an explanation such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay (Karambelas v Zaknic (No 2) at [16]; Nominal Defendant v Browne (2013) 64 MVR 214 at [15]-[16]). This includes the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the plaintiff's position, any delay which occurred was reasonably justifiable.
4. However, it is important to note the warning of the New South Wales Court of Appeal in Walker v Howard at [104] as follows: "[104] Whilst the affidavits were, to a degree, exiguous, I am of the view that they were complete in the relevant sense as saying what happened and why. The provision does not call for perfection, or, as Foster AJA said in Diaz at 183 [122], for prolix or burdensome recounting of every moment that has elapsed. The section does require the explanation for the delay from the date of the accident."
5. Mr Canceri pointed to the evidence which demonstrated there were really quite narrow periods of time for which there was asserted to be no "full" explanation and drew my attention to Walker v Howard at [104], and also to Diaz v Truong (2002) 37 MVR 158. He submitted that the same principles applied to a finding of "satisfactory" explanation.

Findings as to "full" and "satisfactory"

1. The assessment to be made of the explanation given by the plaintiff has been said to involve a normative judgment. This is encompassed by the need to describe the delay incurred as something which a reasonable person in the position of the plaintiff would have been justified in experiencing. The relevant norms or standards are those to be derived from the scheme of the legislation, including its objects. These objections include providing compensation for compensable injuries and encouraging the early resolution of compensation claims.
2. Mr Perla submitted that there were inconsistencies in the plaintiff's evidence as to how she had become aware of any entitlement to bring proceedings for compensation. I do not agree. As Mr Canceri noted, the date for knowledge of the explanation is the same; the question is whether, in looking to the future and considering the welfare of her child, the plaintiff took this course as a result of her uncle's advice or not.
3. Mr Perla also submitted that the plaintiff was not a witness upon whom the court could rely. Her vagueness on dates, her willingness to lie to police concerning who was driving and the implausible and inconsistent nature of some of her explanations meant that she failed to discharge the burden of proof.
4. I am satisfied that the plaintiff's explanation for the accident is "full" in that there is sufficient information before the court as to her reasons for not taking the actions necessary to progress the claim, steps which would have been taken more quickly if her solicitors had acted as they should. The plaintiff's vagueness about dates arises, from my observation of her in the witness box, from her lack of sophistication and from her long history of ill health. She appeared to be wholly intimidated by the legal process.
5. As to "satisfactory", gaps and inconsistencies in the plaintiff's explanation, the plaintiff's history of leukaemia, serious surgeries, significant injury in the motor vehicle accident, opioid addiction and pregnancy problems would confound anyone, let alone an unskilled young woman in a remote country town without the benefits of work experience or education to any significant level. Her demeanour in the witness box was frank and straightforward and I accept her as a witness of truth, the more so in view of her frankness about her drug use, and her lies to police on the day of the accident. Her explanation of her own delays is not only full but also satisfactory.
6. The delays in the plaintiff's case are to a large degree the result of failings by the solicitor. Ms Walsh did nothing except to put the file on the windowsill. Ms Ness, although more active, took a slapdash approach to the preparation of documents, did not help the plaintiff, and wrote to the insurer in aggressive and at times disdainful language. The plaintiff's account was that she relied on her solicitor at all relevant times and I accept that this was the case. Accordingly that part of the delay is both fully and satisfactorily explained.
7. For all of the above reasons, this is a clear case of a plaintiff whose delay is both fully and satisfactorily explained, and accordingly the notice of motion should be dismissed.
8. This brings me to the issue of costs.

Costs

1. Mr Perla submitted that costs should follow the event, not least because the plaintiff is seeking an indulgence and because the explanation given in her affidavit (although served in draft form sometime beforehand) had come very late in the piece. There was an unsatisfactory history in terms of conduct of the whole of the litigation by the plaintiff. Alternatively, the costs should be the defendant's costs in the cause.
2. Mr Canceri submitted that the facts in this case were wholly out of the ordinary by reason of the plaintiff's unfortunate medical history, lack of education and reliance upon solicitors who had let her down. This was a strong case for the granting of the indulgence, particularly in relation to whether the explanation was "satisfactory".
3. Taking all of the above into account, I am of the view that the appropriate order is the costs to be the plaintiff's costs in the cause.

Orders 1. Notice of motion dismissed. 2. Costs to be plaintiff's costs in the cause. 3. Matter stood over to the Case Managed List before the Judicial Registrar on Friday 9 March 2018 for future directions.

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 2018