Draca v Silva

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW), s 81 s 109 Road Rules 2008-reg 149

CASES CITED: Reeves v Reeves [2002] NSWCCA 181 Walker v Howard [2009] NSWCA 408

PARTIES: Slavko DRACA (Plaintiff) Carlos SILVA (Defendant)

COUNSEL: Mr P Frame (Plaintiff) Mr J Gracie (Defendant)

SOLICITORS: NSW Compensation Lawyers (Plaintiff) Vardanega Roberts Solicitors (Defendant)

HIS HONOUR: The plaintiff claimed that he was injured in a motor vehicle accident which occurred on 28 June 2006. His claim is that he was travelling in a lane on a road. The lane came to an end and he sought to move over to his right into the next lane. However, a truck driven by the defendant was in that lane and it struck his vehicle as he was moving his vehicle into the middle lane. It struck his vehicle on the right hand side of the car striking the mirror and the front mudguard area.

On 3 July 2006, he gave instructions to his solicitor to commence proceedings; and on 7 July 2006, his solicitor commenced those proceedings by lodging a claim form. On 11 December 2006, the insurance company acting for the defendant denied liability pursuant to section 81 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). On 30 March 2007, the solicitor sent to the Motor Accidents Authority an application for exemption; and on 12 April, the Authority issued a certificate of exemption pursuant to section 92 of the Act. Once that certificate is granted, the person to whom it is granted is entitled to bring proceedings in court.

However, it was necessary for the plaintiff to get a certificate from the Motor Accidents Medical Assessment Service (MMASS).

In order to obtain damages for normal economic loss, the plaintiff had to obtain a certificate that his degree of permanent impairment as a result of the injury was greater than 10%. If that certificate cannot be obtained, a plaintiff cannot obtain any damages from a court for non-economic loss.

The plaintiff is an Australian citizen who was born in Serbia. It would appear that his knowledge of English is very limited and all his evidence given before me was given with the assistance of an interpreter. He claimed during the course of that evidence that when he gave particulars to police about the accident he also used an interpreter. He has some qualifications from Serbia in agricultural science, but in Australia he has worked in a series of semi-skilled jobs. There is no suggestion that he knows anything at all about law and it is quite clear that he placed himself in the hands of his solicitor in regard to pursuing this claim.

He had been involved in an earlier motor vehicle accident in which his wife was severely injured, he also had been injured at work and in another motor vehicle accident in 2003. His wife has brought proceedings about her accident, but because her injuries were quite serious, there were no disputes about whether she met the 10% threshold and no time limit problems arose. In his case, his motor vehicle accident injuries were assessed by the Motor Accidents Claims Assessment and Resolution Service (CARS) and no time limits apply in relation to such assessment provided the original claim form is served in time. He had no knowledge that any time limits applied in bringing an action in the courts.

His solicitor filed the appropriate application for a MASS certificate; and on 7 April 2008, was given a certificate which did not assess the plaintiff's injuries as being more than 10% of a permanent impairment. On 5 June 2008, his solicitor filed an application for review of that assessment and he was assessed again on 21 November by a review panel which issued a certificate on 3 December 2008, again assessing his injuries as being less than 10%. On 23 December 2008, his solicitor wrote to the Motor Accidents Authority challenging this assessment but the Authority did not accept his criticisms.

Thereafter, the insurer for the defendant sought particulars which were answered and the solicitor arranged to obtain medical reports. The three-year limitation period expired on 28 June 2009. However, because of the time taken to get the medical assessment of the plaintiff that limitation period was extended until 13 September 2009. No court proceedings were commenced before that time.

The plaintiff's solicitor after that time obtained an occupational therapy report and a further medical report; and provided further particulars to the defendant insurer.

On 9 February 2010, he advised the plaintiff for the first time of the three-year limitation period to bring proceedings.

An application was filed in this court on 9 March 2010 seeking leave pursuant to section 109 of the Motor Accidents Compensation Act 1999 (NSW) to bring proceedings after the expiry of the time limit. The application was supported by an affidavit of the plaintiff dated 13th May 2010 and an affidavit dated 19th March 2010 sworn by his solicitor. Both the plaintiff and his solicitor were cross-examined extensively and during the oral evidence, a further statement of the plaintiff dated 16th March 2009 was tendered.

Section 109 of the Motor Accidents Compensation Act 1999 (NSW) is in the following terms: "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 Authority 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."

The issues in the application were whether the plaintiff provided a full and satisfactory explanation for the delay and whether the total damages of all kinds likely to be awarded to be plaintiff if the claim succeeded were not less than 25% of the maximum amount that could be awarded for non-economic loss. It was agreed that for the purposes of this case, the maximum that could be awarded for non-economic loss was $359,000 and 25% of that would be for him $89,750.00.

The plaintiff gave evidence that on the 29th of June 2006 he was driving his motor vehicle along the Hume Highway at Homebush proceeding in an easterly direction. He was wearing a seatbelt and the weather was fine. He was travelling on the inside lane which came to an end. He wished to move into the middle lane and continue his journey. In his statement, he claimed that he looked over his right shoulder and saw that in the middle lane about 3 metres behind his vehicle was a truck. He then gave an indication that he wished to go into the right lane, judging that he had enough room to safely move into the right lane. As he moved into the right lane, the truck, according to him, accelerated and collided with the front of his vehicle, which was already in the middle lane. The truck driver continued on his journey without stopping.

The defendant's Counsel, Mr. Gracie told me that it was his intention to seek to establish either that the plaintiff was fully responsible for the accident or that he was guilty of contributory negligence. He referred me to the Court of Appeal decision of Reeves v Reeves [2002] NSWCCA 181 in which was held that it was relevant for a court considering an application under section 109 of the Act to have regard to contributory negligence if it was raised by the defendant and was established by the defendant. Not only must the defendant establish the contributory negligence, but he must also establish the potential percentage reduction that might result.

Mr. Gracie sought to establish this by cross-examining the plaintiff and by tendering a copy of Road Rules 2008-reg 149. He did not seek to call any other evidence on this issue.

The plaintiff claimed in evidence that he was travelling at between 30 and 40 km per hour, although he had told police officer that he was travelling at 20 km per hour when the truck hit him. He said that he was travelling slowly and in fact slowed down, because there was a car in front of him. He agreed that he could see the truck in his rear vision mirror and said that he did not simply slow down and wait for it to pass, because he was sufficiently far in front of him to be able to have changed to go into the right lane, safely. The truck hit his mirror and scratched his vehicle on the front right-hand side-bumper bar. He claimed not to know what speed the truck was going, but said that he was accelerating and that is why it hit him. He said that when he realised the truck would hit him, he went quickly to the left side, and that was why it hit his car on the front bumper. He denied that at any point the two vehicles were travelling parallel to one another. He agreed there was no damage to any part of his vehicle except the mirror and the front bumper bar.

On that evidence, it was submitted by Mr. Gracie, that the plaintiff was wholly responsible for the accident or at least guilty of contributory negligence. I do not agree with this submission.

In my opinion, the plaintiff is an honest witness and I accept that he was doing exactly what he claimed to be doing at the time of the collision. He gave a signal, he slowed down and started to move into the middle lane. The defendant increased speed and struck his vehicle which he commenced to turn as it was struck. On those facts, the defendant caused the accident by deliberately increasing speed, notwithstanding that a car was coming into his lane. On every day of the week, in many parts of this State, motorists move from one lane to another and this very often requires that a car behind them in the lane into which they are moving slows down. If, in fact, the car behind speeds up to block the person coming into the lane, a collision can occur. It is a question to be determined in every case, whether the car behind is negligent or whether the car turning into the lane is guilty of contributory negligence. If there were a trial of these issues, it is quite possible that more extensive evidence would be presented.

However, in my opinion, on the very limited evidence presented so far, the defendant has not shown that the accident was the fault of the plaintiff or was partly the fault of the plaintiff because the plaintiff, in my opinion, was driving carefully and the defendant should have slowed down to let him come into the middle lane. I cannot see that the plaintiff was even partly responsible for the accident.

It follows, therefore, that I will not take into account when weighing up whether the plaintiff is likely to receive at least $89,750 any question going to liability or contributory negligence.

According to his affidavit, the plaintiff placed himself in the hands of his solicitor. However, he conferred with him on many occasions. He knew the assessor had not assessed him as having a 10% permanent impairment and he knew that the appeal panel also had not assessed him as having a 10% permanent impairment. He spoke to his solicitor about this and about what could be done about this. His previous experience of motor vehicle claims was of the CARS process of assessment. He knew nothing of time limits, could not understand English to any extent and relied on his solicitor.

His solicitor in his affidavit said that he had informed his client of the time limit only in February 2010.

The plaintiff did not in cross-examination change his affidavit evidence as to his knowledge of time limits or his reliance on his solicitor.

The plaintiff did give evidence of speaking to police on two occasions and of speaking to the boss of the defendant, who told him the defendant denied he was at fault. From the time of that conversation he knew the defendant was denying liability and he went to his solicitor within 4 days of this, seeking his assistance because he did not know what to do. Thereafter, he was in constant contact with his solicitor, who showed him the letter of the insurer denying liability and who told him of an assessment of him by Dr. Matalani of being more than 10% permanently injured and of the other assessments of him being less than 10% permanently injured.

Mr. Petrovich, the plaintiff's solicitor gave evidence in chief as to why he considered the assessment was wrong and how it should have been 11%. In cross examination, he said that he was preoccupied about the MAS process and wanted to complete it before bringing proceedings, even if it meant going to the Supreme Court to get judicial review of the assessments. He knew of the expiry of the time limit, but the MAS situation and his negotiations with the insurer led him to overlook the need to bring the proceedings in time. He did not tell his client of the time limit until February 2010, when it became apparent that the insurer would not negotiate.

I accept the evidence on this matter given by the plaintiff and I accept the evidence of Mr. Petrovich. It is clear that Mr. Petrovich was so upset by the rejection of his client's case by the appeal panel, that he wrote a letter to the Authority, even though it was unlikely the Authority would do anything about his complaint. It is clear also that the plaintiff was in constant contact with his solicitor and was taking an active interest in his own case.I accept that he knew what actions Mr. Petrovich was taking, but he did not know anything of time limits, because Mr. Petrovich had never discussed that matter with him.

The plaintiff was required to give a full and satisfactory explanation for the delay in commencing the proceedings. What he has to do is to give his explanation, including what his solicitor or anyone did, but it is his explanation that is required (see Walker v Howard [2009] NSWCA 408 para 55 per Hislop P). The word "claimant" in s 109 is not to be read any more broadly than the claimant himself. The question is whether a reasonable person in the position of the plaintiff would be justified in experiencing the delay (see para 108).

In my opinion, he has given an explanation which fully explains the delay. It is supported by detailed information from himself and from his solicitor. Furthermore, in my opinion, he has given an explanation which satisfactorily explains his delay. Again, he has provided very full information about what he did and what he knew and what instructions he gave.

Are the total damages of all kinds likely to be awarded to the plaintiff if the claim succeeds not less than 25% of the maximum amount that may be awarded for non-economic loss?

The plaintiff gave evidence in his statement of the extent of his injuries and disabilities. A draft statement of claim was also presented. He also gave evidence of his difficulties in working and of things that he could no longer do that he used to do before the accident. For the purpose of determining whether the total damages likely to be awarded are not less than 25%, I exclude any consideration of non-economic loss because the plaintiff cannot pursue such a claim at present and may be able to pursue it only if judicial review succeeds, there is a further assessment and the further assessment results in determination of more than 10%.

What the plaintiff can claim, if he is given leave to commence proceedings is : i Medical, pharmaceutical and related expenses, past and for the future; ii Economic loss; iii Out of pocket expenses; iv Domestic assistance. 32. The only sizeable components of this claim are those for economic loss and for domestic assistance.

I am required to look at what is "likely". Mr. Petrovich has given evidence that in his opinion, as someone skilled as a solicitor in personal injuries litigation, the plaintiff is likely to get an award for economic loss of $500 per week on the basis that a cleaner, could be expected to earn $1000 per week and he would as a matter of probability be able to show a loss of earning capacity of 50%.

Evidence from taxation returns show an employment history which is not entirely clear. At times, he seems to have earned a reasonable income, but at times, hardly any income at all. For some considerable time now, his employment history has been clouded by his becoming a full time carer for his wife, with an income derived entirely from a carer's pension.

However, what is given by way of damages is damages for loss of earning capacity, not loss of income. He clearly has some earning capacity, which is affected, according to his evidence by his inability to do some manual tasks which he used to do as a cleaner. I have to assess this on the limited evidence available before me. I am of the opinion that I am entitled to put reliance on his solicitor's evidence as to the likelihood of his getting $500 per week.

He also claims for loss of domestic services and has in his statement provided extensive details of work he can no longer do particularly domestic work for which he calls on the services of his daughter. There is in evidence a report by an occupational therapist, setting out an assessment of him and setting out what need to be provided to assist him.

I acknowledge that his entitlement to this domestic assistance has changed since the accident, since he now lives in a flat and no longer has to maintain a garden and a yard. However, there is still a substantial amount of assistance that needs to be provided for him, assuming as I do, that he is giving honest evidence. He appears to me to be an honest, straightforward man and that is the view of his solicitor.

Taking all these matters into account, I am of the opinion that he is likely to get more than $89,750 if leave is given to commence proceedings.

As I have resolved all issues in his favour, I grant leave to him to commence proceedings. Such proceedings must be commenced within 1 month of today. I order the plaintiff to pay the defendant's costs of this application and I order that no steps be taken by the defendant to enforce the costs order until the conclusion of the litigation.

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.