El-Husseini v Saadie

Relevant legislative provisions

1. Sections 72 and 73 of MACA provide as follows: "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. 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. Note. The combined effect of sections 72 and 73 is as follows: A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided. Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor."
2. The term a "full and satisfactory explanation for the delay" is explained in Section 66(2) of MACA as follows: "66 Definitions (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."

Factual background

1. The evidence on the Notice of Motion consisted of the following: 1. An affidavit of the second defendant's solicitor, Mr Ian Jones, sworn 23 August 2016 annexing certain relevant documents; 2. A copy of a letter from Kheir Lawyers to NRMA dated 7 October 2014 serving a Statutory Declaration of the plaintiff setting out the reasons for his delayed claim; 3. Oral evidence from the plaintiff given at the hearing of the Motion.
2. The factual background to the matter is disputed. Without objection, a limiting order was sought by the second defendant and made under Section 136 of the Evidence Act 1995 (NSW) in relation to Exhibit A, the Statutory Declaration from the plaintiff, such that it was admitted only as evidence of the facts asserted in it as the full and satisfactory explanation of the plaintiff and not as the truth of the contents.
3. The factual background as asserted by the plaintiff and as given in his oral evidence is as follows: 1. The plaintiff was born in June 1953; 2. Prior to the accident the plaintiff had been involved in another motor vehicle accident on 31 May 2010 in which he had injured his right shoulder, neck and back. The plaintiff gave evidence that he had surgery to his right shoulder. He also stated that Mr Kheir from Kheir Lawyers had been retained by him to act in relation to the claim which he had made in relation to that motor vehicle accident; 3. The motor accident in question in the present proceedings occurred on 20 July 2013; 4. Mr El-Husseini consulted his general practitioner, Dr R Abdullah of Bankstown the day after the accident on 21 July 2013 because the plaintiff was dizzy and feeling unwell; 5. In late August 2013 the plaintiff travelled overseas to Lebanon to visit his ill mother who had been admitted into intensive care. The plaintiff was away for six weeks in Lebanon; 6. Prior to travelling overseas the plaintiff had been contacted by NRMA to advise that they would be undertaking investigations into the circumstances of the July 2013 accident. The plaintiff had been driving a Lexus motor vehicle in the accident and had submitted a property damage insurance claim to NRMA for its consideration. Apparently this was what initiated the investigation by NRMA; 7. The plaintiff stated that he contacted NRMA to co-operate with a private investigator on behalf of NRMA upon his return to Australia. It appears that the interview with the investigator occurred for a number of hours and related partly to how he had come to own the Lexus, which apparently had been a gift from his son; 8. With the plaintiff's permission, NRMA asked if they could examine the plaintiff's car which was then held at a panel beaters workshop. The plaintiff gave his permission and it was taken to an NRMA storage facility; 9. On 8 November 2013 an arson attack occurred at the NRMA facility where the motor vehicle was held and it was damaged and deemed a total right off; 10. On 21 February 2014 the plaintiff was informed by NRMA that it had denied his claim for property damage to the Lexus motor vehicle arising from the motor vehicle accident on 20 July 2013; 11. The plaintiff lodged a dispute with the Ombudsman who dismissed the plaintiff's complaint; 12. In the first half of 2014 the plaintiff travelled to Lebanon on two further occasions to visit his mother and to attend his mother's funeral. These trips were in April-May 2014 and in June 2014; 13. The plaintiff stated in his Statutory Declaration that he hoped the injuries he sustained in the motor vehicle accident on 20 July 2013 would resolve. However, during the June 2014 trip to Lebanon he states that he suffered "a pain across [his] body and it gradually worsened": Statutory Declaration paragraph 14; 14. The plaintiff consulted his general practitioner (it appears Dr Abdullah) to advise in relation to the "deterioration of his health". The plaintiff says he was referred for scans to his left shoulder and was also referred to an orthopaedic specialist. The plaintiff states that he was advised by the orthopaedic specialist, Dr Rahme, that he had torn the muscle in his shoulder and would require surgery. The plaintiff also claims that he was referred to a psychologist, Dr Al Shamali to treat him for psychological injuries arising from the 2013 accident; 15. As a result of the advice from his treating doctors and the fact that he was experiencing continuing pain, the plaintiff says that he consulted Kheir Lawyers on 18 August 2014 with a view to making a claim in relation to the 2013 motor accident. The plaintiff states that he was advised by Mr Kheir for the first time at that conference that there was a six month limitation for filing a claim form after the accident and that that period had expired; 16. The plaintiff says that he returned to see Kheir Lawyers soon after on 1 September 2014 where a motor accident personal injury claim form was completed; 17. This was received by NRMA on 17 September 2014; 18. On 22 September 2014 the NRMA issued a Section 81 Notice advising of the plaintiff's failure to comply with Section 72 of MACA and requesting a full and satisfactory explanation for the delay in making the claim. The claim completed by the plaintiff asserted injuries to the plaintiff's right shoulder, neck and back. He had also asserted that the treating general practitioner for the injuries was a Dr Tran. The plaintiff disclosed in his claim form that he had had a prior motor vehicle accident on 31 May 2010 where QBE Ltd was the relevant insurance company; 19. As stated, on 8 October 2014 NRMA received a letter from the plaintiff's solicitors dated 7 October 2014 attaching the Statutory Declaration of the plaintiff providing his explanation for the delay in making the claim; 20. On 13 November 2014 a letter was sent by the second defendant's solicitors to the plaintiff's solicitors rejecting the plaintiff's explanation for the delay; 21. On 28 January 2015 a letter was sent by the second defendant's solicitors to Kheir Lawyers claiming that the claim was a fraudulent claim; 22. On 19 October 2015 a letter was sent by the second defendant's solicitors to Kheir Lawyers requiring the plaintiff to commence court proceedings pursuant to Section 110 of MACA; 23. The plaintiff states that he did not attend Kheir Lawyers earlier than 18 August 2014 as the investigations by the NRMA in relation to the property damage claim were still outstanding and he was unaware that he was required to lodge a personal injury claim under the circumstances. He also relied on his visits to his ill mother in Lebanon and his hopes that his injuries would resolve.

Submissions for the second defendant

1. Senior Counsel for the second defendant submits that the explanation provided by the plaintiff was neither full nor satisfactory. In circumstances where Kheir Lawyers had acted for the plaintiff in relation to the earlier QBE Ltd claim, it was necessary for the plaintiff to have evidence from the relevant solicitor at Kheir Lawyers that the plaintiff had not been advised in relation to the six month period for the purposes of that claim for the explanation to be a full one. It was also necessary to have an affidavit from the relevant solicitor at Kheir Lawyers supporting the plaintiff's version of events of the legal advice provided in 2014.
2. It was submitted that medical evidence was required substantiating the plaintiff's history of the medical consultations and the onset of the pain, particularly as the plaintiff claimed that the pain had not become more serious until June 2014.
3. In all the circumstances, the second defendant submits that the explanation from the plaintiff should not be accepted as a full and satisfactory explanation under Section 73 of MACA.

Plaintiff's submissions

1. Counsel for the plaintiff, in summary, submits that: 1. The explanation provided by the plaintiff was full and satisfactory; 2. The first motor vehicle claim with QBE Ltd could well have occurred within the first six months after the accident, thereby not requiring any advice in relation to this timing issue; 3. The plaintiff was clearly diverted in relation to concentrating on his injuries by the disputed property damage claim and his mother's illness; 4. It was quite believable that the plaintiff would only first have been aware of injuries arising from the accident that were more serious in June 2014 following a number of trips overseas; 5. There is no reason why the plaintiff's explanation of the delay provided in his Statutory Declaration should not be accepted; 6. In all the circumstances the explanation provided by the plaintiff, together with his oral evidence, was a full and satisfactory explanation for the delay within Section 73 of MACA.
2. Following the court reserving its decision, the plaintiff sought leave to rely on a one page written submission dated 12 December 2016. Leave was not opposed by the second defendant on the basis that it had the opportunity to rely on a responsive written submission. Leave was granted as sought by the plaintiff on 13 December 2016.
3. Counsel for the plaintiff submits in his written submission that as the Statutory Declaration of the plaintiff which was Exhibit A on the application had been declared before the plaintiff's then solicitor Mr Kaled Kheir, a reasonable inference may and ought be drawn by the court that Mr Kaled Kheir supported the accuracy of the plaintiff's assertion in paragraph 18 of the Statutory Declaration declared before him by his client, to the effect that the plaintiff was advised on 18 August 2014 that the 6 month time limitation for filing a claim form had expired. In his oral evidence the plaintiff said this was the first time he had been made aware of such a time limitation.
4. Responsive submission on behalf of the second defendant
5. The court received a responsive written submission from Senior Counsel for the second defendant dated 13 December 2016.
6. In that written submission it was submitted on behalf of the second defendant that: 1. The inference which the plaintiff submits the court should draw from Mr Kheir having witnessed the plaintiff's Statutory Declaration should not be made. It is submitted that the only inference which can be drawn from Mr Kheir's signature on the Statutory Declaration is that the plaintiff told Mr Kheir that the contents of the Statutory Declaration were true at the time he signed the document; 2. It is submitted that the Statutory Declaration signed by the plaintiff may or may not have been drafted by Mr Kheir. It is also submitted that it cannot be inferred that Mr Kheir knew of the detail in the Statutory Declaration at the time he witnessed the plaintiff's making of the Declaration or that Mr Kheir had any knowledge or opinion as to the accuracy of the contents of the Statutory Declaration; 3. It was also submitted that paragraph 18 of the Statutory Declaration is of limited value to the plaintiff as it does not state that the plaintiff had never been advised on any previous occasion of the requirement that a claim in respect of personal injury caused by a motor accident must be lodged within 6 months after the accident.
7. Applicable legal principles
8. The explanation provided by a plaintiff must be full to the extent that it is not sufficient that the court should be asked to draw inferences from correspondence and other documents as to what occurred: Ellis v Reko Pty Ltd [2010] NSWCA 319 at [19]-[21].
9. The requirement for a full explanation does not require that the explanation be perfect with "a prolix and burdensome recounting of every moment which has elapsed": Walker v Howard [2009] NSWCA 408 at [104] per Allsop P.
10. Although the defendant was the moving party on the Motion, an onus rests on the plaintiff to the extent that to succeed in resisting the claim being dismissed on the defendant's Motion, the plaintiff is required to provide an explanation which will fill the requirements of Section 66 of MACA: Smith v Grant [2006] NSWCA 244 at [12]-[14].
11. The explanation by the plaintiff must be full and not selective.
12. The full account required by Section 73 of MACA is not limited to the plaintiff personally where the plaintiff cannot provide that explanation but may require the delay to be explained by legal practitioners acting on behalf of the plaintiff: Walker v Howard [2009] NSWCA 408 at [72] and [106]. To be a "full" explanation all relevant information to enable the court to evaluate the reasons for the delay is required: Walker v Howard at [57].
13. In Nominal Defendant v Browne [2013] NSWCA 197, Basten JA (with whom Barrett and Gleeson JJA agreed) stated as follows in paragraphs [23]-[24]: "[23] An explanation is not a "full" explanation simply because it recounts all that the claimant can remember three years later. One would expect both solicitors and counsel to have some note of the instructions given and the advice relayed. In this case her lack of recollection is understandable, but the explanation given by her was not "full" in the absence of any attempt to obtain further information from her own solicitors and counsel. [24] The primary focus of Walker v Howard, a case involving a claimant with serious brain damage who was not in a position to look after his own interests, was upon the second limb of the test, namely whether the explanation was "satisfactory". That element cannot be assessed if the explanation is incomplete. It nevertheless affirms the need to look to the actions of persons other than the claimant where those actions may form part of the position or circumstances of the claimant."
14. In Karambelas v Zaknic (No 2) [2014] NSWCA 433 Meagher JA (with whom Basten JA and Simpson J agreed) stated as follows at paragraphs [16]-[17]: "[16] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until "the date of providing the explanation". In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing. [17] The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made."
15. In Dijakovic v Perez [2015] NSWCA 174 Gleeson JA (with whom Leeming JA and McCallum J agreed) stated as follows in paragraphs [15]-[19]: "[15] An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. These were explained by Meagher JA (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]. [16] 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 late proceedings under s 109(1) that is the date on which the explanation is first provided. Here, Mr Dijakovic's explanation comprised a combination of affidavit evidence and his oral evidence before the primary judge. Thus he had to explain the period between 21 October 2009 and 30 May 2014. [17] The purpose of the requirement that the explanation be full, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant", is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory: Mancini v Thompson [2002] NSWCA 38 at [46]. It is for this reason that it has been said that the applicant for leave cannot "pick and choose" the information to be given relevant to the delay and which the Court has to decide is "satisfactory": Mancini v Thompson at [46]. [18] Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The "delay" is the period during which the claimant was late commencing proceedings more than three years after the date of the motor accident, subject to the effect of s 109(2) which stops time running where a claim has been referred to the Authority for assessment under Pt 4.4. Here it is common ground that the effect of s 109(2) was that the relevant delay was almost 16 weeks. [19] 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 has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced: Karambelas v Zaknic at [17]."
16. It appears from the authorities that the following principles are applicable in relation to the requirement for a "full and satisfactory explanation" for the delay within Section 66(2) of MACA: 1. The explanation must include a full account of the conduct, including the actions, knowledge and belief of the plaintiff, from the date of the accident until the date of providing the explanation. That is the date on which the explanation is first provided. In the present case the relevant period is between 20 July 2013 and 8 October 2014; 2. The court must then evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant for leave cannot "pick and choose" the information to be given to the court relevant to the delay; 3. The explanation must be such that a reasonable person in the position of the claimant would have been justified in experiencing the same delay; that includes a reasonable person with the same characteristics and injuries as the plaintiff has received; 4. The relevant delay is the period during which the plaintiff was late commencing proceedings which is the period between six months after the accident which is 20 January 2014 and 17 September 2014 when the claim was first made through a claim form being sent to the insurer, NRMA, the second defendant; 5. The court must make an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's particular position, the delay which has occurred was reasonably justifiable.

Consideration

1. I take into account the evidence set out above and the following matters in assessing this application: 1. That according to the plaintiff's oral evidence, when he attended his general practitioner Dr Abdullah the day after the accident on 21 July 2013 he felt unwell and dizzy and he wanted to be checked out; 2. The fact that there was an ongoing investigation in relation to his property damage claim arising out of the accident from about August 2013 until at least August 2014; 3. The plaintiff had been concerned in relation to the health of his mother and had undertaken a number of trips overseas to visit her; 4. The plaintiff was very anxious as he understood that the NRMA alleged that he may have a connection with the arson attack which damaged his motor vehicle; 5. That although he hoped his injuries would resolve, his pain worsened on his trip to Lebanon in June 2014 which required the plaintiff to undertake further medical consultations; 6. That it was only when he consulted his solicitors Kheir Lawyers on 18 August 2014 that he was first advised about the six month time limit. However, he had been involved in a motor accident claim in 2010.
2. The above matters are all relevant to a consideration of the plaintiff's explanation and what a reasonable person in the plaintiff's position would have done at the relevant time.
3. The Statutory Declaration argument
4. The court must consider the additional argument made by the plaintiff in his supplementary written submission dated 12 December 2016 that Mr Kaled Kheir's witnessing of the plaintiff's Statutory Declaration leads to the inference that Mr Kheir supported the accuracy of the plaintiff's assertion in paragraph 18 of the plaintiff's Statutory Declaration.
5. In my view, this argument should be rejected essentially for the reasons set out in paragraphs 11-14 of the written submissions of Senior Counsel for the second defendant dated 13 December 2016.
6. A person witnessing a Statutory Declaration merely gives rise to the inference that the Declarant told the witness that the contents of the Statutory Declaration were true and correct at the time the Declarant signed the document. In this case, the inference which can be drawn is only that the plaintiff told Mr Kheir that the contents of the Statutory Declaration were true and correct at the time the plaintiff signed the Statutory Declaration.
7. Further, there is no proper basis to infer that Mr Kheir as opposed to another person at his firm prepared the Statutory Declaration signed. In paragraphs 18-20 of his Statutory Declaration the plaintiff refers to him consulting "Kheir Lawyers" not Mr Kheir at Kheir Lawyers. In my view it cannot properly be inferred, as the plaintiff submits, that Mr Kheir knew of the detail in the Statutory Declaration when the plaintiff signed it in his presence.
8. In any case, even if the inference sought could be made, I agree with the submission of Senior Counsel for the plaintiff that paragraph 18 of the Statutory Declaration does not assist the plaintiff as claimed: the paragraph merely sets out what the plaintiff was told by someone from Kheir Lawyers not that the meeting on 18 August 2014 was the first time he had been told by Mr Kheir or to his knowledge anyone else from Kheir Lawyers that there was a 6 month time limit for making a claim.

Whether a full explanation has been provided

1. The first question to consider is whether the plaintiff has provided a "full" explanation of his actions, knowledge and belief from the date of the accident until the date of first providing the explanation on 8 October 2014.
2. The "full explanation" must be provided by the plaintiff and where required his legal representatives on his behalf. It is noted in the present case that no affidavit has been provided by the plaintiff's current solicitor or by Mr Kheir, his former solicitor in 2014-15.
3. In my view, the plaintiff has not provided a full explanation for the delay from the date of the accident until the date of the first explanation on 8 October 2014 for the following reasons: 1. The plaintiff has not provided a full account of what relevant legal advice was given to him by Kheir Lawyers in relation to his first claim in 2010. No affidavit has been provided by Mr Kheir or the relevant solicitor applicable as to the advice provided; 2. The plaintiff has not provided evidence in relation to the result of his consultation with Dr R Abdullah a day after the accident on 21 July 2013 and particularly what advice he was given. No report or notes have been placed into evidence; 3. The plaintiff has not provided details in relation to the advice from Macquarie Lawyers referred to in paragraph 12 of his Statutory Declaration and in particular has not annexed copies of any advice received in relation to his rights arising from the accident. No affidavit has been provided by anyone from Macquarie Lawyers; 4. The plaintiff has not provided any medical reports or evidence in relation to his initial consultations with his general practitioners following the claimed deterioration to his health in about June 2014. This does not mean that an affidavit should have been provided by the relevant doctors but medical reports or a letter could have been annexed to an affidavit; 5. A report or letter or notes from the psychologist Dr Al Shamali were not provided in relation to the application even though any report may well have been relevant to the reasons why the plaintiff delayed in making his claim due to his claimed psychological injuries; 6. No evidence was provided by the relevant lawyer from Kheir Lawyers in relation to the crucial meeting on 18 August 2014 or confirming the advice given at that time. See Browne above at [23].
4. Taking into account all of these matters, in my view the explanation provided by the plaintiff to the court was not a "full" explanation within Section 73(7) of MACA. The court simply does not have the necessary information to properly assess the plaintiff's explanation for the delay.

Whether the explanation provided is "satisfactory"

1. The issue here is whether the explanation which has been provided by the plaintiff to the court is such that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay being the delay from six months after the accident (20 January 2014) until 17 September 2014 when the claim was first made. This is a period of a little less than eight months. The reasonable person in the position of the plaintiff for the purposes of Section 66 of MACA is taken to have the same injuries which the plaintiff has arising out of the accident. The proper test requires that the characteristics and personal circumstances of the plaintiff must be taken into account in applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22]-[23]; Walker v Howard [2009] NSWCA 408 at [97].
2. The plaintiff's personal circumstances are that at the time he was 61 years old, had been injured in the accident in 2010, had made a claim in relation to that accident, was a pensioner, and had allegedly suffered shoulder, back and psychological injuries in the subject accident. However, the physical injuries are suggested to have been not serious until June 2014 when the pain gradually worsened (although it seems to be suggested the plaintiff had torn a shoulder muscle in the 2013 accident).
3. In my view, the explanation provided by the plaintiff is not a satisfactory one within the definition for the following reasons: 1. There is no evidence of the medical advice which the plaintiff was provided on 21 July 2013. This is relevant to assessing whether the explanation was satisfactory having regard to the nature of any advice received; 2. There is no evidence from the lawyers at Macquarie Lawyers in relation to the advice which the plaintiff sought and received concerning his property damage claim and in particular whether any incidental advice was sought or given in relation to his personal injuries rights. In my view, a reasonable person in the plaintiff's position would have sought full advice at that time from those lawyers due to the injury alleged to have been suffered in the 2013 accident, even if that injury at that time had not been serious. If full advice had been sought the plaintiff would likely have become aware of the 6 month claim period; 3. No evidence was provided from the psychologist Dr Al Shamali in relation to what affect those problems of the plaintiff might have had on him to allow an assessment to be made of the affect on a reasonable person in the plaintiff's position concerning the delay in making the claim; 4. The court would expect that an affidavit would have been provided by the relevant solicitor at Kheir Lawyers in relation to the 18 August 2014 conference or at least a letter from Mr Kheir or the relevant solicitor that he had refused to provide evidence of that. The plaintiff was the client of Mr Kheir and could have sought relevant conference notes in relation to that conference or any letter of advice he was provided in relation to the six month limit. In the light of the 2010 accident claim in which Kheir Lawyers had acted for the plaintiff, in my view a reasonable person in the plaintiff's position would have sought full advice from those lawyers soon after the 2013 accident due to the injury alleged to have been suffered in the 2013 accident even if that injury at that time had not been serious. The plaintiff had used those lawyers before and was aware that a claim could be made in relation to a motor vehicle accident. If full advice had been sought soon after the accident, as in my view a reasonable person in the plaintiff's position would have, the plaintiff would likely have become aware of the 6 month claim period.
4. For these reasons in my opinion a reasonable person in the position of the plaintiff would not have been justified in experiencing the same delay being the delay from six months after the accident (20 January 2014) until 17 September 2014 when the claim was first made by the plaintiff.
5. I am not excluding the possibility that the plaintiff may be able, with further evidence, to establish that he has a full and satisfactory explanation for the delay. However, on the above evidence I am not satisfied that the plaintiff has provided a full and satisfactory explanation for the delay in making his claim within Section 73(7) of MACA.
6. I make the following orders: 1. The plaintiff's Statement of Claim filed on 18 January 2016 is dismissed. 2. The plaintiff is to pay the second defendant's costs of the Notice of Motion filed on 24 August 2016 and the costs of the proceedings as agreed or assessed. 3. The parties have liberty to apply on two business days' notice to vary the order in (2) above.

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: 16 December 2016