Full and satisfactory explanation for delay
72.In examining the circumstances of the delay involved in the filing of the plaintiff's claim, it is convenient to start with the unchallenged evidence of the plaintiff.
73.I find that at all times, including from the outset, in June 2005 and thereafter, the plaintiff relied upon the advice and actions of her solicitor, concerning the due prosecution of her claim for damages. In this regard, the plaintiff's affidavit, sworn on 14 October 2010, clearly indicated that she had entrusted the conduct of her claim to her solicitors. The unchallenged counterpart of the plaintiff's evidence in that regard is found in paragraph 54 of the affidavit sworn by Mr Masselos on 14 October 2010, which was in the following terms:
"54. In respect of my dealings with the Plaintiff, to my observation, she has always relied upon, and has accepted, my advice in respect of the conduct of her claim, and she has at all times diligently complied with my requests that she attend to matters related to the preparation of her claim, even at times when she was clearly struggling emotionally with the tragic consequences of her accident. To my observation, the Plaintiff has not been responsible for any delay occasioned in the preparation of her matter. Her actions in this regard have always accorded with the advice provided to her by me."
74.The plaintiff's own affidavit provided unchallenged supporting evidence of her emotional struggles, to which Mr Masselos had referred to in paragraph 54 of his affidavit. That evidence was in turn supported by the evidence contained within the successive reports proposed by the plaintiff's treating psychiatrist, Dr Trmcic. As the plaintiff's case is based upon a significant psychiatric component, in order to assess the significance of the delay, it is relevant to examine the tenor of the psychiatric evidence tendered on the application.
75.Although Dr Trmcic thought the plaintiff's major depression had stabilised at the beginning of 2008, as at early 2009, Dr Trmcic was also of the view that at that time the plaintiff's post-traumatic stress disorder had not yet reached a stage of stabilisation for the purposes of an assessment of permanent impairment under the MAA guidelines. In that regard, Dr Trmcic thought the plaintiff's psychological illness displayed symptoms that were chronic, fluctuating, and easily triggered by external psycho-social factors and events that resembled the plaintiff's initial trauma. In my view, the fact that stabilisation of the plaintiff's condition had not yet occurred at that time, was of great significance to whether the claim should proceed to a CARS assessment at that time.
76.Significantly, there was no relevant psychiatric opinion tendered to the contrary of these views of Dr Trmcic.
77.Consistent with the views of Dr Trmcic, a MAS psychiatric assessment report prepared by the consultant psychiatrist Dr Jungfer, on 28 August 2009, relevantly referred to the plaintiff's subsequent prognosis being associated with significant anxiety. The example cited by Dr Jungfer was the plaintiff's refusal to leave her home at the stage of 27 weeks gestation in her subsequent pregnancies. The basis for that position was because of the stated concerns held by the plaintiff, which in turn related to the events of the collision on 20 June 2005. Clearly, on this evidence, the plaintiff's psychiatric condition fluctuated in its intensity, and in its effect upon her.
78.In this regard, at pp 215 - 216 of the bundle of materials exhibited to the affidavit of Mr Masselos sworn on 14 October 2010, Dr Jungfer's report set out the following summary of the history that had been provided to her by the plaintiff:
"...
She describes that most things hold less value to her now than they did prior to the time of the accident although superficially she appears to continue to present as being appropriately groomed. She does attend to her medication and ensures that she takes her medication. She is avoidant of going out and seeing people particularly those people who knew her prior to the accident because she is concerned that people might ask about the accident and the ongoing consequences of this. She is particularly concerned about people who knew about her first pregnancy and the questions that they might ask. She found it very difficult to return to work because of the difficulties that everyone knew she was pregnant and the questions that they might ask.
She actively avoids talking about the accident and talking about the accident causes her to be acutely distressed. She continues to have traumatic flashbacks to the coffin and the funeral of her daughter. She continues to have flashbacks to holding her daughter a day following her death and a few days later. She has dreams where she continues to dream of the scene at the hospital and also of holding her dead daughter. She avoids the scene of the accident, will drive a longer route to get to St John of God Hospital because of having to go past the scene of the accident. While her grandmother lived at Londonderry she would avoid going to Londonderry because it meant driving past the scene of the accident. She will not be a passenger in a vehicle, she will not sit in the back seat of a car. On the rare occasions she is a front seat passenger she is hypervigilant, anxious and comments frequently on the driver's behaviour to a point where people will stop driving and have her drive because of the extent of her behaviour. She avoids driving needlessly. She drives where she has to go to her appointments, to shopping but tries to avoid driving for leisure purposes because of her anxieties regarding being in a car.
If her husband should take her children to some activity she will ring constantly to check that they are okay and she is anxious while they are away. She tries hard not to stop her children from doing things for fear of their safety and welfare although (she) remains anxious when they are out of her sight.
She goes out less often, she does not socialise. She last went out and met up with friends for lunch a few months ago. She does still attend family functions although this involves very little effort in that most family members live within a few streets from each other. She does not have the same sense of enjoyment at these family activities than she did in the past. She will take the children to the park and the pond, she has a heightened sense of responsibility of being a good mother and so continues to do these things as she sees it as being extremely important that she must be a good mother because of the fact that she cannot be a good mother to Tianne, the child that she lost. Her concentration can be variable and at times she loses concentration and is distractible.
Current and Proposed Treatment
Currently she sees a consultant psychiatrist every eight weeks and has episodic reviews by her clinical psychologist. She takes Sertraline 200mg per day and Quetiapine 50mg at night. Attempts to cease the medication has resulted in a recurrence of her symptoms and there are no plans to currently change her treatment regime."
79.Significantly, at pp 218 - 219 of the bundle exhibited to the affidavit of Mr Masselos, Dr Jungfer expressed her diagnostic conclusions and her assessment of the plaintiff's condition in the following terms:
"6. Conclusions
Diagnosis and Causation
Miss Kelly Edwards presents with a cluster of symptoms consistent with a post traumatic stress disorder. She was involved in an accident that was frightening which resulted in significant injury, indeed the loss of life of her unborn child. She was hospitalised, had significant pain and suffering following the accident. She has traumatic recollections not specifically to the accident per se but to events surrounding the accident in particular scenes at the hospital and holding her dead child and the child's funeral. The events linked to the accident in my opinion related directly to the accident. She has avoidance behaviour particularly marked avoidance behaviour regarding events that might trigger her thoughts related to the accident or avoidance behaviour of situations where she might have to talk about the accident and its consequences. There has also been a change in terms of emotional functioning with recurrent dysphoric mood, alterations in sleep and social relationships. Her symptom clusters are consistent with that of a post traumatic stress disorder complicated by a major depression condition. The pattern of the emergence of the symptoms, the duration of symptoms and their response to treatment is consistent with known clinical experience of these conditions. In view of her past history of an absence of psychiatric dysfunction and disability it is my opinion that the accident has been the causative factor. The nature of the accident was of sufficient severity to warrant the diagnosis of a post traumatic stress disorder, the pattern of symptoms is consistent with a post traumatic stress disorder. The symptoms are of greater severity than that would be of an adjustment disorder and are not explained purely on the basis of a grief disorder although her grief is pathological and complicates the presentation. The range of her symptoms particularly that of her depressive symptoms in my opinion are more than that of a grief disorder and warrant the diagnosis of a major depressive disorder. They are partially controlled by her pharmacotherapy. There are no complicating factors such as that of substance abuse and no genetic vulnerabilities. It is my opinion that the accident is the sole causative factor."
80.My view of this body of evidence leads me to conclude that from the time of her injury on 20 June 2005 and until the time Dr Jungfer assessed the plaintiff in August 2009, the plaintiff was beset with significant psychological illness, as was described by Dr Trmcic and Dr Jungfer.
81.In that time, the plaintiff's primary needs and objectives were to achieve stabilisation of her emotional state, which was the subject of flare-ups on significant occasions on which she was subjected to reminders of her injury and the subsequent neonatal death of her child. Those reminders included aspects of her own subsequent pregnancies, her emotional reactions around the anniversary of the event in question, distressing matters raised with her during questioning in medical examinations, and her need to obtain ongoing supportive psychiatric treatment.
82.It is plain from the tendered correspondence, that throughout these events, the plaintiff's solicitor was looking after her best interests with regard to the proof and advancement of her claim, albeit that the claim was not filed before the required 3-year limitation period. He did so by appropriately pursuing Allianz, with evidence, seeking a concession that the plaintiff was entitled to damages for non-economic loss. In my view the delay that was encountered during, and as a result of that process, leading up to the lodgement on 4 December 2009 of the application for a CARS assessment, was not unreasonable.
83.In the circumstances of the delay until 4 December 2009, there are two relevant factors, namely the position with regard to liability, and the concurrent need to define, through evidence, the parameters of the plaintiff's claim for damages.
84.It seems to me that the factor of liability can be safely put to one side as being of no relevance to the question of whether or not a full and satisfactory explanation has been provided. This is because Allianz had earlier indicated that there would be no issue concerning the question of breach of duty of care. That issue was conceded by Allianz.
85.The remaining question of the inter-relationship between the damages issues and the requirement of a full and satisfactory explanation is a relevant consideration to the question of whether or not the plaintiff should be granted leave to proceed.
86.It is appropriate to review some relevant principles that guide the exercise under consideration.
87.Whether or not an explanation for delay can be seen to be full or satisfactory depended upon the context in which the question arose: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, per Gleeson CJ, at p 645. In examining relevant delay, it is a given that the explanation of the factual context of the delay does not require the solicitor involved in the case to tediously recount and annotate all the facts in affidavit form: Walker v Howard [2009] NSWCA 408, per Allsop P at [104]. This is especially so where, as is the case here, there is no substantive dispute as to the detail of the relevant chronology of events.
88.That said, in my view, the affidavits of Mr Masselos provide full and satisfactory explanations for the delay. As the plaintiff's solicitor, it was clear that he was concerned to ensure that any damages assessment of the plaintiff's case would include damages for non-economic loss in respect of her significant psychological disabilities.
89.The policy that underpins the gateway requirements of s 109(3) and s 66(2) of the MAC Act is to generally protect insurers against the potential burden posed by late claims. This requires that the initial part of the evaluation of the entitlement of a plaintiff to the grant of leave to proceed must favour the insurer: Walker v Howard , per Allsop P at [103], following Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, [10]-[11].
90.In my view this requirement to meet the needs of the insurer has been more than adequately addressed in this case because, over a considerable period of time, Allianz had been kept informed of the plaintiff's psychological condition through serial reports from the plaintiff's treating psychiatrist. Furthermore, Allianz has exercised its right to have the plaintiff examined by 3 medico-legal experts, including an examination by Dr Robert Lewin, a consultant psychiatrist. The absence of any report from Dr Lewin from the material tendered on the application, reinforces my view that there is no disentitling conduct on the part of the plaintiff that should be weighed against a claim by the plaintiff for the leave sought to be granted.
91.In my view the circumstances described in the evidence on this application compel the conclusion that there has been a full and satisfactory explanation for the delay incurred in filing the claim.
92.On the basis of the unchallenged factual evidence contained in the affidavit of the plaintiff, I have concluded that when the plaintiff instructed her solicitors, she was entitled to assume that her solicitors were looking after her interests, including by observing applicable time limits governing the formalities and time limits within which proceedings were required to be instituted on her behalf: Smith v Grant , per Basten JA at [60].
93.The evaluation required in this case is not required to extend to a consideration of any alleged blameworthiness arising from the conduct of the solicitor for the plaintiff: Smith v Grant , per Basten JA at [33]. The real question is whether the plaintiff has established an entitlement to a grant of the leave sought.
94.To the extent that the conduct of the solicitor for the plaintiff is required to be examined, it is relevant to note that on the principal issue of liability, the plaintiff's solicitor would have drawn comfort from the fact that the issue of breach of duty of care had been admitted. Reasonably, this would have directed the attention of the plaintiff's solicitor to the remaining questions concerning a damages assessment, which necessarily required that the plaintiff's whole person impairment be identified, including taking into account relevant psychiatric factors, before her claim was assessed.
95.At the forefront of any damages inquiry by the plaintiff's solicitor is the question of whether the plaintiff was able to satisfy the assessment requirements for establishing her legal entitlement to damages for non-economic loss. In this regard, it is plain from the conduct of, and correspondence from Allianz, that this was a major item of dispute between the parties. In my view, the solicitor for the plaintiff was entitled to pursue and square away that issue before lodging the CARS application and then instituting proceedings, especially in circumstances where the question of liability was not an issue.
96.It is plain that the delay in question was occasioned whilst the plaintiff's solicitor was attempting, reasonably in my view and in the best interests of his client, to secure a concession from Allianz to the effect that the plaintiff was entitled to damages for non-economic loss.
97.It is also plain that Allianz was for a significant period of time, unwilling to concede that issue. In these circumstances I consider that the solicitor for the plaintiff was justified in seeking to resolve the matter of the degree of whole person impairment as a whole before instituting proceedings. This had to be achieved in the CARS assessment process.
98.In coming to this view, I have considered the submission made on behalf of Allianz to the effect that the plaintiff's solicitor ought to have sought a separate CARS assessment at an earlier point in time, based on the plaintiff's physical impairment alone, in the circumstances where the plaintiff's psychiatric condition had not yet stabilised. I reject that submission as involving a spurious hindsight consideration, especially where it was desirable that multiple applications for assessment were to be avoided, if not discouraged.
99.In my view the chronology of events in this case demonstrates that this is not a case where the insurer needs to be protected against the potential for injustice that could emanate from the presentation of a stale claim where it is otherwise fair and just to allow the claim to proceed: Salido v Nominal Defendant (1993) 32 NSWLR 524, per Gleeson CJ, at 532. The plaintiff's claim was not stale, her psychological condition had not stabilised to permit an earlier assessment, and this was a matter upon which the insurer had been kept informed.
100.This analysis brings into focus the question of what a reasonable person in the position of the plaintiff would have done in the circumstances, and whether what has occurred in this case, fairly amounts to a full and satisfactory explanation for the delay: s 66(2) of the MAC Act .
101.Eliminating as irrelevant, the hindsight considerations raised by the defendant's submissions on this issue, I consider that a reasonable person in the position of the plaintiff would have followed the procedural course charted by the plaintiff's solicitor, especially in a case involving such a significant psychiatric disability, as was the case here, with a concomitant dispute over the plaintiff's entitlement to damages for non-economic loss. I consider that a reasonable person in the position of the plaintiff would have done what the plaintiff did, namely to follow the advice of her solicitor.
102.I do not consider that the approach taken by the plaintiff's solicitor (in seeking to first resolve the outstanding dispute over the extent of the plaintiff's whole person impairment on account of both physical and psychiatric factors before taking the required precursor steps to filing proceedings) to have involved conduct that was either unreasonable, or which would enable the insurer to avoid the need to meet the financial consequences of the plaintiff's claim.
103.I have arrived at this view because I consider it was the initial conduct of Allianz that set the plaintiff's solicitor on that path. This arose from the Allianz letter dated 18 June 2007, in which it was suggested that no decision could be made by Allianz in respect of whole person impairment, as the plaintiff's psychological condition had not stabilised, and it was therefore premature to make such an assessment : Annexure "B" to the Affidavit of Mr Masselos sworn on 14 October 2010, namely Exhibit "B". In my view, this created the relevant backdrop for the delay that has occurred in this case.
104.The further administrative delays that arose in pursuit of the CARS process, whilst unfortunate, have no bearing on the matter at issue in this application.
105.Notwithstanding that the Principal Claims Officer of CARS had, on 23 February 2010, rejected the defence position on the state of particulars, on 11 January 2011, the solicitor for the defendant was still writing to the plaintiff's solicitor on the topic of the particulars, in somewhat vituperative terms, as is evident from the following extract from Annexure "F" to the affidavit of Mr Masselos sworn on 12 January 2011, which was marked as Exhibit "C" on the application:
"...
It follows that where particulars are provided late, inadequately or not at all, the opportunities for early rehabilitation, settlement, and contemporaneous investigation of a claim are lost to the insurer. Those opportunities cannot be recovered even if the particulars are provided subsequently. Prejudice is not cured by providing schedules of damages filled with hyperbole, nor by medico-legal reports from doctors who in the large majority have never treated the claimant.
In cases such as this, where the delay is inordinate and the eventual provision of particulars is minimalistic and incomplete, the situation is considerably worse. When we followed up the outstanding requests, we warned you at the time that a refusal to cooperate with the insurer would be highly inadvisable in the circumstances. You repudiated that advice. The failure to cooperate persists even now, when you are seeking an indulgence from the Court to overcome a statutory limitation. Approaching this application with unclean hands is about as appropriate as the hubris evident in your correspondence.
Your letter seeking particulars of prejudice also seems to suffer from a misunderstanding of section 109, and of limitation applications generally. The proposed defendant is, at this time, not required to make any positive allegation or file any pleading. It is you who must persuade the court that leave should be given.
Your concentration on prejudice as the only aspect to be considered in such an application is equally erroneous. All of the interests of justice are available for consideration. Your prosecution of this claim - and we use the term loosely - is squarely in issue in this matter."
[Emphases added]
106.It is clear from the terms of that letter from Mr Hanna, that the solicitor for the defendant was seeking to make an issue of the conduct of the plaintiff's case by her solicitor.
107.When the whole of the circumstances of the plaintiff's case are examined, I do not consider that the plaintiff's solicitor had acted with unclean hands, or with hubris, as was asserted by the solicitor for the defendant, in the correspondence that I have extracted.
108.I do not consider the solicitor for the plaintiff has allowed procedural mistakes to occur in the circumstances of the evolution of this case. Allowing for the possibility that minds may differ on that issue, the fact remains, that mistakes of the kind asserted, do not, as a matter of necessity, stand in the way of granting the plaintiff leave to proceed: Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 , per Foster AJA at [146]-[147].
109.For these reasons, subject to a consideration of the issue of whether the delay in question has caused the defendant to be relevantly disadvantaged by delay-based prejudice, I consider that the plaintiff has satisfied the requirement of providing a full and satisfactory explanation sufficient to justify the making of an order granting her leave to proceed, notwithstanding the delay incurred in filing the proceedings.
110.Accordingly, the remaining substantive question is whether the delay incurred in this case, has operated against the defendant so as to cause significant prejudice in achieving a fair trial of the issues between the parties.