(a) the respondent was aware of the purpose of CTP insurance and that that was available to a person who had been injured in a motor vehicle accident by a negligent driver;
(b) as she worked in the criminal law section of the Commission, the respondent was aware that there might well be time limits included in legislation relating to the making of a personal injury damages claim as there was in relation to the criminal law;
(c) although the respondent believed that, apart from workers compensation, she was not entitled to claim damages for the injuries she sustained in the accident under the MA Act due to the fact that she was injured in the course of her journey to work, nonetheless it was an assumption she made without knowing what the law might be in that particular area;
(d) although approaching solicitors within the Commission's office where she worked with personal problems was not actively encouraged, there was no evidence that it was discouraged especially if it was a one off situation;
(e) the Commission had a civil section where there were solicitors who were not unapproachable and who, if she had sought advice on the matter, would, so she expected, have given it;
(f) there was a panel of barristers, and presumably solicitors, in private practice who were used by the Commission and although she was not close to them, they were familiar with her and she with them.
94 Accordingly, the critical question concerns the behaviour of a reasonable person in the position of the respondent who, having the knowledge to which I have referred above, and having formed a belief without the benefit of any legal advice that, although she had been injured in a motor vehicle accident due to the negligence of the appellant, because that accident had occurred on her way to work as a consequence whereof she became entitled to workers compensation, that fact alone disentitled her from claiming damages under the MA Act. Would that reasonable person in the respondent's position and having formed the belief she did, have sought legal advice on the correctness of that belief either from one of the solicitors in the civil section of the Commission or from a solicitor in private practice or would she, like the respondent, have done nothing to ascertain whether her belief was right or wrong?
95 Turning first to whether a reasonable person in the respondent's position would have sought legal advice from one of the Commission's solicitors. I note that at the time of the accident the respondent was 29 years of age and had worked at the Commission for some 11 years. As I have observed, the respondent agreed that the Commission's solicitors who worked in civil matters were not unapproachable and there was no suggestion that approaching solicitors in the Commission's office was actively discouraged.
96 On one view of it, it could be said that a reasonable person in such circumstances would have approached one of these solicitors for advice on what was a simple and confined legal point. This is not to say that the reasonable person would have requested that the solicitor take on the potential matter; but she might be expected simply to have asked whether, in circumstances where she had been involved in a motor vehicle accident on her way to work in which she sustained injuries which had not subsided, and where she was receiving workers compensation payments in relation to that accident, she was correct in her belief that she was not entitled to make a claim for damages for the personal injuries she had sustained in the accident for which she regarded the appellant as responsible. Such a question could have been answered quite simply and if the answer had been that the respondent's belief as to her legal position was incorrect, which can be assumed in the present case, then the reasonable person in the respondent's position would be expected to have then sought further legal advice from a solicitor in private practice such as Mr Kramer, a course in fact taken by the respondent when it was suggested to her by Dr Yenson, her general practitioner.
97 However, notwithstanding the foregoing and my findings in [84] and [93] above, nevertheless I am prepared to determine the case upon the basis, urged by the respondent, that a reasonable person in the respondent's position would not have wished to approach one of the Commission's solicitors for even the limited legal advice referred to above. With some reluctance, I am prepared for present purposes to accept that this is the case for various reasons, including the respondent's status as a clerk (and, it seems, a relatively junior clerk given her evidence that her supervisors were "higher clerks"); the lack of a direct line of communication between the clerical staff in the respondent's position and the Commission's solicitors; and a concern, which these days might be reasonable, on the part of the respondent that, notwithstanding the approachability of the Commission's solicitors, such a course of action might be regarded as an attempt to obtain free professional advice which was, at best, unprofessional and an imposition upon the solicitors concerned and, at worst, an abuse of her position.
98 That said, in my view, even if the reasonable person in the respondent's position in the Commission would not have sought legal advice from one of the Commission's solicitors for the reasons outlined above, it should be inferred that that reasonable person would have sought that advice by some other means, such as, for example, by ascertaining the names of the solicitors in private practice on the Commission's panel to whom civil damages claims were being referred and arranging a consultation with one of them.
99 In my view, there is no reason even to suspect that a reasonable person in the respondent's position would have been reluctant to take such a course, particularly given that she had worked in a legal environment for many years, that legal practitioners were certainly not foreign to her and that, in fact, as I have found, the evidence establishes that there was a panel of barristers, and presumably solicitors, in private practice, the names and contact details of whom she had access to, such that it would have been a relatively easy matter for her to arrange a short consultation with one of them for the limited purpose of confirming or otherwise her belief that she was disentitled from making a claim under the MA Act for the reasons referred to above.
100 In my opinion, if the second limb of s40(2) of the MA Act is to achieve its purpose of setting an objective standard of conduct with respect to the expected behaviour of a reasonable person in the position of the respondent who had been injured (no doubt in her view seriously) in a motor vehicle accident and who, as she said, had sustained significant injuries that impacted on all aspects of her life and which did not subside, such a person would have been expected at the very least to have sought legal advice, by some means or other as to whether her belief that she did not have a claim under the MA Act because she was receiving workers compensation payments due to her time off work as a result of those injuries, was indeed correct as a matter of law. It is not suggested that had such a question been asked, it would have been answered otherwise than that, at the very least, she may have such a claim.
101 In argument before this Court it was suggested that it was perfectly understandable for the reasonable person in the respondent's position, who was a clerk and not a lawyer and notwithstanding that she worked in a legal environment, to have reasonably believed that the fact that she was in receipt of workers compensation payments disentitled her to claim damages in respect of the injuries sustained by her in the motor vehicle accident against the appellant whom she regarded as responsible for the accident and for her injuries: see the primary judge's finding recorded in [46] above.
102 The difficulty with this approach in my view is that it asks the wrong question. It is not a question of whether the belief held by the respondent was other than bona fide or, for that matter, whether in the particular circumstances it was reasonably held. The correct question is whether, holding that belief, the reasonable person in the position of the respondent would have simply left the matter at that, ignored the possibility that the belief may have been wrong and, notwithstanding knowledge that CTP insurance was available to compensate those who had sustained injuries in motor vehicle accidents due to the negligent conduct of another driver, would have considered it unnecessary to make the very basic enquiry of a qualified person as to whether the belief was justified.
103 I would not have expected a reasonable person in the position of the respondent to behave in that way. If a person did, he or she would not have been justified in experiencing a delay of nearly five years before seeking legal advice which immediately led to the making of a claim under the MA Act. On the contrary, a reasonable person in the position of the respondent whose symptoms from the effects of her injuries had not dissipated but had in fact worsened, would have sought legal advice as to the correctness of her belief that, as the accident happened on her way to work, she was entitled only to workers compensation and not entitled to make a claim under the MA Act in circumstances where she was well aware that, but for the accident being work related, she would have had such a claim.
104 It follows that in my opinion the second limb of s40(2) is not satisfied with the consequence that the pre-condition to the grant of leave that the respondent provide not only a full but also a satisfactory explanation to the Court for her delay has not been satisfied. Accordingly, the respondent's application for leave to commence proceedings must be refused as s52(4B) mandates.