Ellis v Reko Pty Limited

CATCHWORDS: Limitation of actions- Motor Accidents Compensation Act 1999, s 109(3)- action not commenced within 3 years- necessary for leave to be obtained which may only be granted upon a full and satisfactory explanation for delay- motor vehicle accident with a forklift at work- claimant filled in forms for workers compensation and says he did not realise that more needed to be done for a motor vehicle claim- claimant of limited education and manual worker- held: that District Court correct in ruling that more details needed and hence not a full explanation of delay.

LEGISLATION CITED: Motor Accidents Compensation Act 1999, ss 66(2), 109

CASES CITED: Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515 Walker v Howard [2009] NSWCA 408; 55 MVR 9

PARTIES: Christopher Ellis (Applicant) Reko Pty Limited (Respondent)

COUNSEL: R Goodridge (Applicant) L King SC and P A Rickard (Respondent)

SOLICITORS: Firths - The Compensation Lawyers (Applicant) Goldbergs (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 4 November 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Ellis v Reko Pty Limited [2009] NSWDC 288

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/61597

BEAZLEY JA YOUNG JA HANDLEY AJA

Wednesday 10 November 2010 ELLIS v REKO PTY LTD Judgment 1 BEAZLEY JA: I will ask Young JA to give the first judgment. 2 YOUNG JA: This is a concurrent hearing by summons for leave to appeal (though that summons was filed out of time) and, if leave is given, for the hearing of the appeal. 3 The subject matter of the appeal is a decision of Knox DCJ who dismissed a motion brought by the applicant for leave to commence proceedings against the defendant for damages for personal injuries suffered as a result of a motor vehicle accident that happened on 3 March 2003. 4 Essentially, the applicant says - and there is no reason to doubt any of this - that on the day in question he was employed by the defendant at its Lisarow warehouse. He was driving a forklift in the warehouse when his left arm was wedged by the steering wheel of the forklift and he was extensively injured. He filled in the appropriate forms for workers compensation and received workers compensation payouts for both money he received himself and monies paid on his behalf, involving at least a payout of $138,000. 5 It would appear quite clear that although the accident happened inside the warehouse and happened whilst the applicant was at work, it was also a motor vehicle accident. 6 Under the Motor Accidents Compensation Act 1999 (commonly called the MAC Act) the applicant had to commence any common law action for damages within three years; that is, by March 2006. 7 Section 109 of the MAC Act provides that an action after those three years is not to be commenced without leave of the Court and s 109(3) says: "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 ..." 8 The primary judge was not satisfied that the applicant had established this and so dismissed the motion seeking to obtain the Court's leave. 9 The vital paragraph of his Honour's judgment is paragraph 29 which reads: "However, for the purposes of this particular application, there is limited evidence which is effectively contained to one area only. There are no details of the applicant's 'actions, knowledge and belief' which constitute a 'full' explanation let alone what his position was in the terms referred to by Tobias JA in Figliuzzi at [93]. There are, for example, no details of what was his state of belief, how and why he came to that state of belief and what actions he took -- other than his notification of the workers compensation claim to the employer."

The reference to Figliuzzi is a reference to Figliuzzi v Yonan [2005] NSWCA 290; 44 MVR 515. 10 Accordingly, in paragraph 30 of his judgment the learned primary judge summarised his thoughts by saying: "Taken at its highest, the applicant is effectively saying 'I didn't know I had a motor vehicle claim. I told the insurers that there had been an accident and that it involved a vehicle. That should have been enough to inform them and put the onus on them to investigate whether I was bringing a claim for negligence under the Motor Accidents Act'." 11 The judge then said: "I do not consider that that fact alone constitutes a full and satisfactory explanation for the delay. The fact of the notification is but one factor in determining the issue of prejudice." 12 He then went on to say that, in the circumstances, he did not need to consider prejudice. 13 That motion was decided on 4 November 2009. There was a delay from the delivery of that judgment to the filing of the summons seeking leave to appeal in this Court on 10 March 2010. 14 There is an affidavit filed as to why there was this three-month delay. It is not, I must confess, particularly convincing, but in view of what I am about to say, that does not matter very much. 15 The application today was presented by Mr Goodridge of counsel for the applicant; Mr King SC and Mr Rickard of counsel who appeared for the respondent were not called upon. 16 Mr Goodridge said that, in essence, really what more can a man say than "I'm a workman. I have limited education. I do not know the technicalities of the law. I had an accident. The insurance company knew I had an accident, knew how it happened. Surely that's enough". 17 He distinguished Figliuzzi's case on the basis that that case was one where the worker concerned was a worker in the Legal Aid office who would be in a superior position of knowing what a reasonable person in the circumstances might have to do when suffering such an accident. 18 Now, that distinction is true, in one sense. It is also true that each case must be decided on its own facts and circumstances but it does seem to me that the learned primary judge was quite correct that, in the instant case, there was just not sufficient there for him to hold that there was a full and satisfactory explanation. 19 The word "full" is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the Court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious. 20 Mr Goodridge puts that the authorities such as Walker v Howard [2009] NSWCA 408; 55 MVR 9 make it clear that it is not every detail, no matter how significant, that must be put in the full and substantial explanation. 21 However, whilst there may be some nice distinctions between what falls one side of the line or the other, one must, to my mind, at least give more details in this case, than this applicant did. 22 Indeed, even Mr Goodridge submitted that the explanation could have been more detailed. 23 I think that not only could it have been, it should have been and we should have been told why it was, for instance, that the claimant went to the solicitors and whether he ever did have any thoughts about the matter earlier rather than it being left to the inference that Mr Goodridge asked us to draw from a paragraph in a solicitor's letter that the solicitor had been consulted because the plaintiff was unhappy about the way the workers compensation insurer was treating his continuing disabilities. 24 So Mr Goodridge complains that the statement made by the primary judge that the applicant was effectively saying, "I didn't know I had a motor vehicle claim" and that was enough, that really he was saying, "I didn't know that it was necessary for me to go through a different process and provide different paperwork when the insurers knew all about it", I do not think that his honour can be justly criticised for putting the matter in the shorthand way he did. 25 The whole matter comes down to whether his honour was justified in coming to the view in paragraph 29 that this explanation just was not "full and satisfactory" within the meaning of the statute. 26 I myself cannot see any reason to come to any contrary view despite Mr Goodridge's valiant attempts to persuade me. 27 Accordingly, in my view, this is a case where we should refuse leave to appeal with costs. 28 BEAZLEY JA: I agree that the summons for leave should be dismissed with costs and I substantially agree with the reasons of Young JA. 29 The Court should accept, in my opinion, the evidence contained in paragraph 10 of the applicant's affidavit that he did not know that he had a claim until he was told under the Motor Accidents Compensation Act 1999 and he was so informed by his solicitor. 30 However, in order for a court to grant leave to bring proceedings after the expiration of the period of three years after the date of the incident, it has to be satisfied, relevantly for the purposes of this matter, that the claimant had provided a full and satisfactory explanation to the Court for the delay. 31 A reference to a "full and satisfactory explanation" is defined in an explicatory way in the Motor Accidents Compensation Act, s 66(2) in the following terms: "(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." 32 I agree with Young JA that the word "full" must be given some real meaning. I do not consider a statement such as was made by the applicant in paragraph 10 of his affidavit was sufficient. Nor do I think that the Court could draw the inferences from the contents of the letter of advice given by the solicitors on 26 April 2006 as filling the necessary gap so as to satisfy the statutory requirement. 33 I agree that the appropriate order in the case is that the summons for leave to appeal be dismissed with costs. 34 HANDLEY AJA: I agree with the previous judgments. 35 BEAZLEY JA: The decision of the Court is that the summons for leave to appeal is dismissed with costs. **********

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