Darwich v Sinclair

Civil Procedure Act 2002 LEGISLATION CITED: Evidence Act 1995 Motor Accidents Compensation Act 1999

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Campbell v United Pacific Transport Ltd [1966] Qd R 465 Commonwealth of Australia v Smith [2005] NSWCA 478 Cowie v State Electricity Commission (Vic) (1964) VR 788 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Ditchburn v Seltsam (1989) 17 NSWLR 697 Henricks v Agnew (1997) 26 MVR 277 CASES CITED: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Khoury v Linfox Australia Pty Ltd (2006) NSWCA 51 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Smith v Grant (2006) 67 NSWLR 735 South Western Area Health Service v Gabriel [2001] NSWCA 477 State of NSW v Moss [2000] NSWCA 13 Sydney City Council v Zegarac (1998) 43 NSWLR 195 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347

PARTIES: Daniel Darwich (Plaintiff) Wayne Sinclair (Defendant)

COUNSEL: Mr K Andrews (Plaintiff) Mr W Fitzsimmons (Defendant)

SOLICITORS: Carneys Lawyers (Plaintiff) Hunt & Hunt (Defendant)

The plaintiff Daniel Darwich proceeds upon a notice of motion filed on 26 September 2008 seeking leave pursuant to s 109 of the Motor Accidents Compensation Act 1999 to continue proceedings filed on 19 September 2008. In those proceedings he claims damages as a result of injuries he sustained in a motor vehicle accident that occurred on 27 August 2001.

Section 109 of the Motor Accidents Compensation Act 1999 requires that in the circumstances of this case, the plaintiff is not entitled to commence proceedings without the leave of the Court. Section 109(3)(a) provides that the Court must not grant leave to commence proceedings unless the plaintiff provides a full and satisfactory explanation for the delay in commencing proceedings. Section 109(3)(a) is informed by section 66(2) in which a full and satisfactory explanation for delay is defined as one which a reasonable person in the position of the plaintiff would have experienced. Section 109(3)(b) provides that the plaintiff must also show that the amount of damages awardable is likely to be not less than 25 per cent of the maximum amount that would have been awardable under s 134 of the Act as at the date of injury. In this instance the defendant concedes that 25 per cent of the applicable s 134 amount is $67,750.

The issues that arose for determination are: Issue 1 : Whether the plaintiff has provided a full and satisfactory explanation for the delay incurred;

Issue 2 : The role and actions of the plaintiff's former advisors being either the Accident Injury Compensation Service or other solicitors;

Issue 3 : Whether there is prejudice to the defendant if leave were to be granted;

Issue 4 : Whether the plaintiff is able to satisfy the quantum requirements of section 109(3)(c) of the Act.

The plaintiff was born in 1987. He was aged 13 years when he was injured on 27 February 2001. At the time of his injury the plaintiff was running in a westerly direction along Juno Parade, Greenacre. At that time he was being chased by a man who had earlier threatened him with violence. In these events the plaintiff ran onto the roadway and in doing so, he was struck by the motor vehicle registered number TLR 585 which was at that time being driven in a westerly direction along Juno Parade, Greenacre, by the defendant, Wayne Sinclair.

At the time the plaintiff was struck by the defendant's vehicle the plaintiff had already crossed a substantial portion of the roadway. Following the incident the plaintiff was taken by ambulance to St George Hospital where he was treated for a closed head injury and a back injury.

The defendant disputes both liability and quantum in the proceedings. The defendant also disputes the threshold question as to quantum raised pursuant to s 109(3)(a) of the Act. The defendant claims that prejudice would arise if the plaintiff's claim was permitted to proceed.

In support of the motion the plaintiff relied upon the following affidavits: (a) The affidavit sworn on 26 September 2008 by his solicitor, David Radcliffe Ford;

(b) The plaintiff's own affidavit sworn on 2 October 2008; and

(c) The affidavit sworn on 2 October 2008 by the plaintiff's mother Rabab Darwich.

All three deponents were cross-examined on their affidavits.

The plaintiff also relied upon Exhibit "A" which comprised a bundle of 12 medical reports which comprised some 65 pages.

In opposing the plaintiff's motion the defendant tendered medical reports and statements and relied upon the following affidavits: (a) The affidavit sworn on 7 May 2008 by Georgina Innes, a senior injury claims consultant employed by the defendant's insurer;

(b) The affidavit sworn on 29 April 2009 by Maria Caldaroni, solicitor.

The plaintiff objected to portions of each of these affidavits, claiming that the probative value of the material objected to was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff's interests : s 135 Evidence Act 1995. I upheld a number of such objections.

The two affidavits relied upon by the defendant annexed compendious material amounting to some 244 pages of annexures. The plaintiff objected to a number of these annexures on grounds of inadmissibility as hearsay and because of an inability to forensically examine some of the un-identified hearsay origins of this material. In particular, the plaintiff relied upon a letter dated 13 March 2009 sent by the plaintiff's solicitor to the solicitor for the defendant seeking particulars of claimed prejudice in relation to the plaintiff's motion. In particular, the letter concluded: " Please note we require any Affidavits upon which you intend to rely to be served no later than 14 days prior to the hearing of the Notice of Motion.

Furthermore, any documents which the Defendant intends to tender at the motion, must be served at least 14 days prior to the hearing of the motion. Beforehand, on 2 March 2009 the Judicial Registrar ordered the Defendant to serve any outstanding evidence in respect of the Plaintiff's motion by 20 April 2009."

It was common ground that the defendant served the affidavits of Ms Innes and Ms Caldaroni on 7 May 2009. It was also common ground that such service was outside the timetable set by the order of the Judicial Registrar.

In my view the timing of the service of the affidavits relied upon by the defendant had the effect of causing forensic prejudice to the plaintiff in precluding the taking of appropriate and timely steps to meet these affidavits. In the circumstances I made an order striking out portions of the affidavits relied upon by the defendant for non-compliance with the orders of the Judicial Registrar : s 56 of the Civil Procedure Act 2002; Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

The plaintiff was born in November 1987. Before his injury he attended the Malek Fahd Islamic School. At school he encountered some problems with his behaviour and discipline which resulted in his parents transferring him to a less strict public school environment. There was clearly some evidence of pre-injury behavioural issues but these were not fully explored at this interlocutory stage.

The plaintiff was injured in a street accident on 27 February 2001. He had no clear recollection of being injured. He was taken to St George Hospital where he was diagnosed as suffering from the effects of a closed head injury, a low back injury, contusions to the face, bruising to the shoulders and chipped teeth. He missed minimal time from school although from time to time he did consult his general practitioner Dr Selim concerning the ongoing effects of the accident.

When the plaintiff was in hospital his mother had been advised by a hospital social worker that it may be possible to bring a claim for compensation. She did not act on that information. Her explanation for not doing so was that she had hoped and expected the plaintiff would make a full recovery. I accept that explanation as being truthful.

In 2002 the plaintiff's mother became increasingly concerned with his complaints of ongoing headaches, however her expectation was that he would recover. During 2002 the plaintiff continued to attend school. It appears the plaintiff left school at the end of 2002 and commenced to work in his father's butcher shop. His complaints of headaches continued and he exhibited behavioural problems including anger and mood swings. Throughout 2003 the plaintiff's behaviour worsened. In this regard, on 18 June 2003 a consultation was arranged with Dr Selim who organised a psychological assessment of the plaintiff as well as a CT brain scan.

On 20 June 2003 the plaintiff was admitted to a juvenile detention centre. He was discharged from that centre in March 2004. The defendant stated that for the purposes of this application no credit comment would be made on this period of detention. Whilst in juvenile detention the plaintiff learned of the possibility of making a claim for compensation concerning the injuries he sustained in the accident.

In October 2004 the plaintiff's mother consulted Dr M Dowla, a consultant neurologist, concerning the plaintiff's ongoing complaints. The plaintiff had undergone a number of radiological investigations of his lower back including x-rays and CT scans. Due to ongoing behavioural concerns the plaintiff was referred for an MRI brain scan on 14 October 2004.

Mrs Darwich stated that in October 2004 she raised with Dr Dowla the possibility of making a claim and said that Dr Dowla had expressed to her the view that any claim that the plaintiff may have was "a small case it is not worth the hassle". She said it was her belief, based on what she had understood from the hospital social worker, mistakenly, that the plaintiff had 10 years from the date of his accident in which to bring a claim. When in December 2004 Mrs Darwich again discussed the possibility of a claim with Dr Dowla he apparently then stated "it is his right to bring a claim if he so wishes".

In any event, the plaintiff became of full age and capacity in November 2005.

On 24 January 2005, following an advertisement that came to her attention, the plaintiff's mother telephoned an organisation called Accident Injury Compensation Service [AICS] which appeared to be some kind of referral agency or clearing house for the assessment and referral of accident victims to solicitors in order to obtain assistance with their claims. She and the plaintiff provided that organisation with details of the plaintiff's injuries and the relevant circumstances. Following this, on 1 March 2005 the plaintiff's mother received a letter from AICS stating that it was not willing to "act" for the plaintiff. Thereafter the plaintiff and his mother believed in effect that he did not have a claim to be prosecuted. I accept their evidence in this regard.

From 2005 and onwards the plaintiff worked in his father's butcher shop carrying out customer service duties. During this time he has had continuing difficulties concerning his back.

After having what he thought to be legal assistance declined by AICS no further investigations of a potential claim for damages was initiated either by or on behalf of the plaintiff until March 2007 when Keddies were consulted. This was so notwithstanding that the plaintiff has had occasion to consult solicitors for other legal problems but not in respect of matters of compensation.

On 15 March 2007, following the recommendation of a friend, the plaintiff consulted Keddies lawyers. Thereafter, the plaintiff's solicitor has been Mr David Ford who has continued to act for him following Mr Ford's change of employment to Carney's the plaintiff's present firm of solicitors. Since being consulted, Mr Ford has taken numerous steps aimed at advancing a claim for damages on behalf of the plaintiff in connection with his injuries.

The defendant has conceded that in respect of any delay that has occurred from the time Mr Ford was consulted and has continued to act for the plaintiff, a full and satisfactory explanation has been provided for the purposes of s 109(3)(a) of the Act. Given that concession made by the defendant, I do not consider it necessary to review the detail of the very many steps taken by Mr Ford in furtherance of the plaintiff's claim from 15 March 2007 until the present time. However, the defendant argues that a full and satisfactory explanation has not been provided in respect of the period between the time of the injury on 27 February 2001 and 15 March 2007.

It is necessary to examine the defendant's argument that for the period 27 February 2001 until 15 March 2007 the plaintiff has not provided a full and satisfactory explanation for the delay. Within that time there are two relevant periods for consideration. The first, being from the time of the plaintiff's injury in 27 February 2001 until 24 January 2005, being the time AICS was approached and the second, from 1 March 2005 when AICS advised that it was not prepared to "act", until the time Mr Ford was consulted.

It is relevant to note that in respect of the period between 27 February 2001 and November 2005 the plaintiff was a minor. He was not of full age and capacity in that period and it was the responsibility of his parents to make decisions for him on matters of legal consequence. It is clear that the primary concern of Mrs Darwich was the wellbeing of her son. She initially maintained a hope and expectation that he would make a full recovery from his injuries. I consider that it is against that background, that Mrs Darwich's attitude to her son's possible compensation rights must be viewed.

Shortly after the accident the plaintiff's mother had been told by the investigating police officer that the accident in question was her son's fault and was not the fault of the defendant driver. Whilst that view was one which the investigating police officer was entitled to express, it was not definitive of the plaintiff's potential rights. I find that view did however influence the thinking of the plaintiff's mother on the issue of whether or not he had a viable claim for compensation. I consider that view formed the basis of discouraging her from pursuing the matter with vigour. Being relatively unsophisticated, and absent formal legal advice on the issue of whether the plaintiff had a claim, I consider that the plaintiff's mother and the plaintiff could be forgiven for not definitively knowing that he had a right to make a claim or that it was necessary to pursue with vigour the question of whether or not a potential claim had arguable merit.

Whilst it is true that when the plaintiff was in detention he became aware of the possibility of making a claim, he was understandably pre-occupied with other issues and this occurred when he was at an immature age. The defendant sought and obtained a concession from the plaintiff that over the years before he lodged this current claim, he had occasion to see solicitors for advice on other matters, not accident compensation. There is no evidence that the plaintiff received legal advice in respect of that period so as to lead to a conclusion that he either knew or ought to have known that he should have lodged a claim for damages at an earlier time. I accept the plaintiff's evidence in that regard.

In find that in respect of the first period, up until 1 March 2005, the plaintiff has provided a full and satisfactory explanation for the delay in pursuing proceedings.

In respect of the second period, namely, from 1 March 2005 after AICS advised it was not prepared to "act", the defendant argued that the plaintiff ought to have been put on his enquiry about pursuing a potential claim.

I do not accept that argument for a number of reasons. The plaintiff was unsophisticated. There is evidence that he has a frontal lobe brain problem and there is evidence of behavioural problems. It has not been shown that the plaintiff knew that the assessment made by AICS was not in fact legal advice. In my view in those circumstances, once discouraged by such advice, he was not obliged to continue zealously to pursue alternative legal advice according to the standard of "litigious exuberance" : Ditchburn v Seltsam (1989) 17 NSWLR 697 per Kirby P at p 704. The discouragement offered by AICS obviously deterred the plaintiff and his mother from continuing to consider compensation.

In the described circumstances, in my assessment, I consider that the plaintiff has provided a full and satisfactory explanation for the delay in respect of this second period of delay, until the time when he consulted his present solicitor.

I therefore conclude that the plaintiff has satisfied the requirements of s 109(3)(a) of the Act concerning the provision of a full and satisfactory explanation for all of the identified delays in question.

Issue 2 - The role and actions of the plaintiff's former advisors

The defendant sought to imply that because the plaintiff had received legal advice in respect of other matters unconnected with his compensation issues, the actions or non-action of the plaintiff's solicitors established either a prejudice or comprised some kind of a failure to provide a full and satisfactory explanation. In Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 consideration was given to the conduct of the plaintiff's solicitors as forming part of the full and satisfactory explanation. At [33], p 743 Basten JA stated: "It does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor. That being so, it follows that an explanation may be a full explanation without exploring the blameworthiness, or otherwise, of the solicitor."

Further, at [60], p 749 Basten JA held: "Accordingly, the weight of authority under the Motor Accidents Act (the 1988 Act) in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could prove a satisfactory explanation for delay in commencing proceedings. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Ltd ( references omitted ) …. in relation to the Motor Accidents Compensation Act."

Guided by these statements I conclude that the plaintiff's contact with other solicitors for advice on other matters does not detract from the fullness or satisfactory nature of the proffered explanation. Similarly, I consider that reliance by the plaintiff and his mother on the rejection by AICS does not detract from the fullness or the satisfactory nature of his explanation. It should be noted that AICS was not a legal practice and could not have given legal advice.

The defendant maintains that prejudice will arise if the plaintiff's claim is permitted to proceed. It is therefore necessary to examine the basis of that assertion.

The defendant has had the plaintiff examined by Dr Paul Spira, a consultant neurologist. The defendant has also obtained a medical report from Dr Spira but that report was not tendered in the course of the hearing of the notice of motion. The plaintiff submits that it can therefore be assumed that Dr Spira's medical report does not advance the defendant's position in connection with claimed prejudice.

In anticipation of the claim of prejudice the plaintiff sought and obtained particulars of the alleged prejudice to the defendant so as to avoid being ambushed on the issue at the hearing : Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116. In essence the defendant's claim of prejudice relates to three identified matters, namely, availability of witnesses, the availability of medical evidence and a claimed inability to make contact with AICS. I will examine each of these matters in turn.

The defendant's CTP insurer was first notified of the claim when it received the plaintiff's claim form on 23 May 2007, which was over six years after the accident. The insurer responded promptly to the claim, requesting a police report on the same day the claim was received. Following receipt of the police report the insurer promptly commissioned its liability investigations. The initial report was received by the insurer in September 2007, even before the plaintiff had provided an explanation for the delay in serving his claim form. Subsequent investigations were undertaken at the request of the insurer or its solicitors, details of which are revealed in the various affidavits upon which the defendant relies. As a result of those investigations it appears that the defendant has had the opportunity of identifying the following persons as potential witnesses: (a) James Luyendik, an eyewitness to the accident. The defendant has obtained a statement from him;

(b) Wayne Sinclair, the defendant. The insurer has obtained a statement from him;

(c) Mrs El-Hassan, a witness. The defendant has established her address and/or whereabouts;

(d) Sergeant Gray, who attended the scene of the collision. The defendant has obtained a statement from him;

(e) Leonarda Tannous, a witness to the accident whose details are available to the defendant;

(f) Kyong Bin Park, a person who was at the scene at the time of the accident. The defendant has established his whereabouts including his telephone number and address.

The defendant seeks to imply that a fair trial cannot be achieved in this case as the insurer cannot find a number of witnesses. In reality this translates into the proposition that there were a number of potential witnesses who were or might have been available, but as some of them cannot now be located, the defendant has been deprived of evidence required to defend the proceedings.

The evidence discloses that the insurer has access to the defendant driver and the investigating police officer. The defendant's insurer has not demonstrated that these persons have no relevant recollection of the events or that they cannot have their recollections refreshed by access to relevant documents.

The defendant points to not having been able to obtain statements from Mrs El-Hassan and Mr Kyong Bin Park who were at the scene of the accident. The defendant claims these persons will not assist the defendant in defending the proceedings. However, with due respect to the submissions made on behalf of the defendant, that is not the issue. These persons, like any other witnesses, were and are amenable to subpoena. The defendant has not shown that these persons were at some earlier time willing to assist but are no longer willing to do so. It is noteworthy that the defendant has made no efforts to subpoena these persons for the hearing of the plaintiff's application in order to try to demonstrate a prejudice due to the alleged non-co-operation of these witnesses.

The defendant raised a question as to the availability of contemporaneous radiology evidence and the availability of being able to obtain medical evidence. The defendant offered no relevant evidence to substantiate the inability to obtain a fair trial on the medical issues. The contrary inference is available because the defendant has obtained a report of Dr Spira who had examined the plaintiff for medico-legal purposes. The defendant did not tender that report on the hearing of the application.

All of the medical and radiology reports that have been tendered were from practitioners who were capable of coming to an informed decision as to the plaintiff's injuries and/or ongoing disabilities, noting specifically that Dr Kahil, Dr Dowla and Dr Fearnside all relevantly formed their opinions in 2008. Further, the radiology reports were available for any expert to consider if the need arose to do so.

In the absence of any evidence of inability on the part of the defendant to meet the plaintiff's case on the medical issues, similar to the situation that arose in Henricks v Agnew (1997) 26 MVR 277, I find that the defendant has failed to satisfy the evidentiary burden the defendant carried which required prejudice to be shown on the medical issues due to any unavailability of radiology films or otherwise.

In support of the contention of prejudice the defendant also appeared to rely on other matters such as not being able to contact the Accident Injury Compensation Service, a claims clearing house which the plaintiff and his mother had consulted in early 2005.

It is not clear as to how a relevant prejudice would arise in this regard except to the extent that the defendant may perhaps have been endeavouring to find inconsistent past statements that the plaintiff may have made to others. However the evidence adduced as to the defendant's attempts in this regard was fundamentally flawed. No explanation was given by the defendant as to why letters to ACIS were forwarded to an address found in a telephone book as opposed to forwarding correspondence to the directors of the company in question at the address provided for in the ASIC searches for the AICS entity. The defendant did not appropriately address this issue at the hearing of the application. There is therefore no evidence that its access to records kept by AICS has been denied to the defendant, assuming there was something there that may have been of assistance.

It is also noteworthy that other searches conducted by the defendant in relation to possible tenants of shops in the area of the accident were not pursued by way of company searches and letters to the proprietor of those shops. Once again, no explanation was given by the defendant for such failure. Such searches are fundamental matters which are often quick and cost effective potential ways of obtaining details of witnesses. In any event the defendant has not established that the evidence of such witnesses, would have necessarily had any bearing on the question of liability. I consider that the defendant has not demonstrated a relevant prejudice in this regard.

The defendant bears the evidentiary onus of establishing prejudice. As to the question of the onus of establishing prejudice it is pertinent to note that in a limitation case under the Limitation Act 1969, in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197 Mason P stated: "… Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour see (at 547), Toohey J and Gummow J citing Cowie .v. State Electricity Commission (Vic) (1964) VR788 at 793 …… Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that parties camp to know the existence, impact and extent of such prejudice."

It must be remembered that prejudice is but one of a list of factors in a limitation case : Zegarac per Mason P at p 198. The real question is whether delay has made the chances of a fair trial unlikely : Zegarac per Mason P at p 199, citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. Even proof of significant prejudice does not dictate the rejection of an application for extension of time : Zegarac per Mason P at p 199.

The authorities made it clear that there is a difference between a fair trial and an ideal or perfect trial : Commonwealth of Australia v Smith [2005] NSWCA 478. In that context, for prejudice to operate as a bar, it must be shown to be significant so as to render a fair trial unlikely : The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 per McColl JA at [96] following Brisbane; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; Commonwealth of Australia v Smith [2005] NSWCA 478 and South Western Area Health Service v Gabriel [2001] NSWCA 477.

In the end result it is for the defendant to show that there are sufficient facts to compel the view that prejudice would result if the plaintiff were given leave to proceed and it is for the plaintiff to show that the facts relied upon by the defendant to assert prejudice do not amount to material prejudice : Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 per Toohey and Gummow JJ applying Campbell v United Pacific Transport Ltd [1966] Qd R 465 per Gibb J at 474.

In my view all the defendant has done in this case is to show that a trial of the issues may not necessarily be easy, may be even difficult, but this falls far short of establishing material prejudice. In my view the defendant has failed to establish that it is unable to fairly defend itself in the plaintiff's proceedings or is unable to otherwise defend itself. I therefore consider that it has failed to establish any significant prejudice or any prejudice that ought to operate as a bar to the plaintiff's claim being permitted to proceed.

Issue 4 - The requirements of section 109(3)(c) of the Act

In addition to the requirement that the plaintiff provide a full and satisfactory explanation for the delay, the plaintiff must also satisfy the quantum threshold that the total of all kinds of damages likely to be awarded if the claim were to succeed would be not less than 25 per cent of the maximum amount that may be awarded for non-economic loss under s 134 of the Act : s 109(3)(c) of the Act. In this case the defendant concedes that amount to be $67,750.

Since I have concluded that the plaintiff has satisfied all other requirements specified by s 109, and that the defendant has failed to establish prejudice, it remains to consider whether the plaintiff is likely to be able to fulfil this remaining quantum requirement so as to justify a grant of leave to proceed. This necessitates a short review of the evidence as to injuries and impairment.

On 19 April 2004 the plaintiff's general practitioner obtained an unspecified radiological report of the plaintiff's lumbar spine. Whilst it was not clear as to whether it was an x-ray, a CT scan or an MRI scan, it reported minor L1 wedging stated to be consistent with compression trauma to the plaintiff's lumbar spine.

On 7 February 2007 it appears that a CT scan was obtained of the plaintiff's lumbar spine which was reported as showing, amongst other things, L5/S1 disc space narrowing and mild degenerative changes in the lumbo-sacral facet joints.

On 17 January 2008 the plaintiff underwent a lumbo-sacral MRI scan which was stated to reveal mild degenerative changes at the L4/5 and L5/S1 levels. This was also said to show mild broad-based disc bulges and mild to moderate facet joint hypertrophy causing mild to moderate neural exit foraminal stenoses.

On 27 March 2008 Dr Tamer Kahil, an orthopaedic surgeon, reviewed the imaging scans and stated that he thought there was a direct causal connection between these MRI findings and the plaintiff's back injury as he thought the plaintiff was too young to have such disc degeneration. Whilst the defendant wishes to contest that view, for the purpose of this application it must be seen as a triable issue. Dr Kahil suggested a neurologist should assess the plaintiff's head injury.

On 2 April 2008 Dr M Dowla, a neurologist provided a report stating a connection between the plaintiff's post-traumatic headaches and a cerebral contusion resulting from the head injury. He noted the association between that condition and frontal lobe syndrome, including problems of apathy, memory and behaviour disturbance.

Dr Dowla noted the MRI findings of possible gliosis or scarring of brain tissue in the right frontal sub-cortical white matter. He stated the plaintiff's current behavioural and memory disturbance, irritability and apathy were manifestations of a right frontal lobe lesion caused by the head injury in the accident. Again, a significant triable damages issue has been raised by such evidence.

Dr Dowla referred to the plaintiff having old mild Scheuermann's disease which was apparently evident on the scans and was unlikely to be caused by the accident but which "can certainly contribute to his back pain". That view is a far cry from the defendant's submission that the plaintiff's back pain is due to Scheuermann's disease of no causal relevance to the accident and as such, it is a significant triable issue.

On 10 November 2008, Professor Michael Fearnside, a consultant neurosurgeon retained by the defendant, reported on the plaintiffs problems as follows : "Mr Darwich would be fit for light and moderate physical work but noting that he has little in the way of ongoing education, his vocational options are limited, likely to unskilled jobs. Noting that his symptoms have persisted for over 7 years now, it is likely that it will continue to experience back and leg pain."

Clearly a triable issue has been raised as to whether the plaintiff's back injury will cause him to suffer any future impairment of earning capacity. The defendant argues that the plaintiff's back problems are due to an underlying Scheuermann's disease which is an unlikely result of the accident. In contrast the plaintiff argues whatever may have been the extent of any underlying condition, there is evidence of a trauma to the lumbar spine which has caused damage and which will have an ongoing effect, including on the plaintiff's future earning capacity. This is quite separate from the issue of whether or not the plaintiff's frontal lobe problems are likely to have any negative impact on his future earning capacity.

The defendant has disputed the plaintiff's submission on the threshold issue and has submitted that it is likely that any entitlement to damages will not satisfy the quantum threshold under s 109(3)(c) of the Act.

In support of that submission the defendant points to the fact that the plaintiff was aged 13 years at the time of his injury, he was experiencing behavioural difficulties prior to the accident, as is reflected in the school records from the Malek Fahd Islamic School, he had been seen by Dr Benjamin, a psychiatrist, concerning psychological difficulties that had been diagnosed as a personality disorder which pre-existed the accident and as a consequence of his behaviour, he was transferred to a public school which he left in 2002 at Year 9 level. The defendant also draws attention to the fact that from early 2003 the plaintiff worked as an apprentice butcher on a full-time basis for his father, he was incarcerated for a serious criminal offence from mid-2003 until March 2004 and thereafter he returned to full-time work in his father's butcher shop. The defendant also pointed to the fact that the medical reports to date do not reveal a whole person impairment in excess of 10 per cent. The plaintiff has yet to be assessed by the Medical Assessment Service.

The defendant submits that Dr Kahil's opinion that the plaintiff is not fit to work due to the effects of his head and back injuries should not be accepted as it is inconsistent with the objective evidence that the plaintiff is engaged in full-time employment. This again is a triable issue.

The defendant submits that as a result of the matters identified, absent any entitlement of the plaintiff to claim non-economic loss and past economic loss, together with the fact that when he worked in his father's butcher shop the plaintiff was exercising an earning capacity commensurate with his education and pre-injury potential, the highest economic loss cushion or buffer the plaintiff would be entitled to expect should not exceed $30,000. Accepting the claim for out-of-pocket expenses of $3533.50, and allowing for the future of expenses of approximately $5000 the defendant submits that absent any present entitlement to claim non-economic loss, the plaintiff could expect to receive an award of the order of less than $40,000, which is less than the required s 109(3)(b) threshold, so that leave should not be granted.

The plaintiff's submissions have identified the following claimed heads of damage : (a) Non-economic loss; (b) Out-of-pocket expenses; (c) Future out-of-pocket expenses; (d) Economic loss; (e) Superannuation loss;

On the medical evidence presented, and having regard to the identified frontal lobe problems, the related behavioural issues, and the abnormalities of the plaintiff's lumbar spine as identified on MRI scanning, reflected as they are in physical symptoms and impairment of physically dexterous activities, I have formed the view on the balance of probabilities that it is likely that under the MAS assessment guidelines the plaintiff's whole person impairment will be assessed to exceed 10 per cent which would give him an entitlement to claim damages from non-economic loss.

Having formed that view, and on that analysis, I consider it is likely that the awardable damages for non-economic loss in relation to these matters is likely to exceed $100,000, which exceeds the required threshold. However as a MAS assessment is yet to occur, I will not proceed upon my own understanding of the possible outcome of the MAS assessment guidelines and I will not speculate on the outcome of that process as that exercise requires medical expertise. Instead, I will analyse the plaintiff's arguable entitlements under the other claimed heads of damage.

At the time of the hearing of the application the claim for economic loss is limited to a claim for impairment of future earning capacity.

A review of the medical evidence in this case reveals that the plaintiff has ongoing lower back pain radiating to the legs, heel pain and intra-scapular pain, he is unable to stand for prolonged periods and he is unable to help his father in his butcher's shop. He has frontal lobe syndrome and many cognitive issues. I consider that these matters, if accepted as being causally related to the accident, which they appear to be, will give rise to a reasonable basis to award the plaintiff an allowance for loss of future earning capacity. These are significant impairments for a 22-year-old person who is otherwise unskilled and who has had only limited education.

The present convention concerning the assessment of damages for future impairment of earning capacity is to assume a working life to age 67 years. In the plaintiff's case, this means a further 45 years of working life. The plaintiff presently works in his father's butcher's shop. It would be unsafe to assume that will continue indefinitely for the remainder of the plaintiff's potential working life.

For the purpose of determining the issues in this application, it is necessary to approach the matter of future loss of earning capacity in a broad fashion in the form of an economic buffer, especially where there is no actual evidence of a present or continuing loss but there is a medical basis for inferring such a loss : State of NSW v Moss [2000] NSWCA 13.

In my view the medical evidence justifies the award of an economic buffer. I consider that on an acceptance of the plaintiff's present medical evidence, an appropriate economic buffer would be at least $100,000. In testing the appropriateness of such a buffer I note that it is the equivalent of an award of about $125 per week projected at 5 per cent over 44 years less 15 per cent discount to allow for adverse vicissitudes. In the current industrial circumstances average weekly earnings for full-time employees in New South Wales are currently listed by the Australian Bureau of Statistics to be $1288.70 per week gross. Noting that this is the rough equivalent of approximately $930 per week net, I consider that a buffer of $100,000, when tested in this way, is fair, reasonable and appropriate on the presently available evidence.

Assuming the award of an economic buffer of the order of $100,000, this would conventionally attract an 11 per cent allowance for commensurate superannuation losses, namely $11,000. When the presently identified allowance for out-of-pocket expenses of $3533.50 is added, this leads to a potential and unremarkable damages estimate of the order of $114,533 without entertaining speculation as to whether a future MAS assessment would create an entitlement for the plaintiff to receive an award for non-economic loss.

On this analysis, it is therefore apparent that the total damages of all kinds likely to be awarded to the plaintiff will exceed $67,750 so as to satisfy the requirements of s 109(3)(c) of the Act.

In addition to the foregoing analysis as to the threshold requirements of s 109(3)(c) of the Act, the plaintiff relies upon the provisions of s 109(4) of the Act which states that subsection (3)(b) of s 109 does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. The plaintiff has submitted that the subsection could be construed to apply to a person who was legally incapacitated "at the time of the accident." The defendant disputes that interpretation. I consider that it is unnecessary for me to resolve that issue as I have concluded that the plaintiff has otherwise satisfied the threshold requirements of s 109(3)(c) of the Act.

I find that the plaintiff has provided a full and satisfactory explanation for the delay. I find that the plaintiff has satisfied the quantum threshold of s 109(3)(b) of the Act. I reject the submission that the defendant has shown prejudice, significant or otherwise. I therefore find that the plaintiff is entitled to a grant of leave to proceed pursuant to s 109 of the Act.

By reason of the plaintiff seeking leave to proceed, the defendant has incurred costs. I consider that in this case, since the plaintiff has sought the procedural indulgence, the appropriate order should be that the defendant's costs of the application be paid by the plaintiff.

In respect of the plaintiff's motion filed on 26 September 2008 I order that: (a) The time for commencing proceedings be extended until 18 December 2009;

(b) The plaintiff is to pay the defendant's costs of the motion, such costs are not to become payable until after the conclusion of the proceedings;

(d) Liberty to apply on 7 days notice if further orders are required.

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