Gardiner v Nominal Defendant

CATCHWORDS: Full and satisfactory explanation - Damages threshold

Figliuzzi v Yonan [2005] NSWCA 290 CASES CITED: Smith v Grant [2006] NSWCA 244 Russo v Aiello (2003) 215 CLR 643

PARTIES: Michael Leslie Gardiner Nominal Defendant

M B Inglis COUNSEL: J Sleight

Pollock, Greening & Hampshire SOLICITORS: GIO General Limited

JUDGE Margaret SIDIS COFFS HARBOUR: FRIDAY 10 NOVEMBER 2006

1 Michael Leslie Gardiner was badly injured when he lost control of his motorcycle on Park Beach Road late on the evening of 5 July 1999. His pillion passenger, Raymond McMaster was also badly injured. Mr Gardiner claims that his accident was the fault of the driver of an unidentified motor vehicle who entered Park Beach Road from Bourke Street and travelled initially on the wrong side of the road. Mr McMaster made the same allegation.

2 Mr Gardiner did not give notice of claim as required by s 43 of the Motor Accidents Act 1988. On 9 July 2006, his claim form was forwarded to the insurer appointed by the Nominal Defendant. Accompanying the claim form was a statutory declaration in which he stated his reasons for the delay in giving notice of the claim. His explanation was rejected by the insurer on 11 July 2006.

3 An application has been filed on 12 October 2006 in which Mr Gardiner seeks leave to commence proceedings out of time. This application requires Mr Gardiner to satisfy the court of the following: 1. That the Nominal Defendant could secure a fair trial of the issues arising out of this claim. This was not an aspect relied upon by the Nominal Defendant and is not pursued further in these reasons. 2. That the explanation provided by him meets the requirements of s 43(a) and s 52(iv) of the Act as being a full explanation for the delay. This was not an aspect relied upon by the Nominal Defendant and is not pursued further. 3. That the explanation be satisfactory: this was the main issue argued by the Nominal Defendant on the application, and 4. That total damages of all kinds likely to be awarded to Mr Gardiner if his claim succeeds will exceed $65,000. This was also an issue raised by the Nominal Defendant.

4 After the close of evidence on 9 November 2006 an issue was raised concerning the date upon which certain charges which were brought against Mr Gardiner were heard in the Local Court, the evidence at that stage standing at 20 October 2002. It has been agreed between the parties this morning that in fact those charges were heard in the Local Court on 20 October 2000.

5 The explanation which Mr Gardiner provided was to the following effect.

6 He said that prior to his accident he had no knowledge of the provisions of the Motor Accidents Act 1988 in respect of rights to compensation or in relation to claims where unidentified motor vehicles were involved. He said the only advice he obtained prior to May 2006 related primarily to traffic charges. Those charges which were brought against him as a result of the accident were, driving in a manner dangerous causing grievous bodily harm, driving with mid range prescribed concentration of alcohol, driving while unlicensed, driving an unregistered motor vehicle and driving an uninsured motor vehicle. Advice in respect of these charges was sought six to seven months after the accident which was already close to or outside the period in which a notice of claim was required to be made. There was no evidence that he was advised to serve notice of his claim. Mr Gardiner was not tested on this aspect of his evidence.

7 Having been advised to await the outcome of the traffic charges, Mr Gardiner said he understood that he needed to be successful in defending those charges. He was referred by the private solicitor to the Legal Aid office for representation in respect of the traffic charges. He said that the Legal Aid solicitor gave him no advice in respect of any compensation claim, nor did he seek any advice from that solicitor.

8 The traffic charges were concluded on 20 October 2000 when he was convicted in respect of the charges relating to the prescribed concentration of alcohol, his being unlicensed and driving an unregistered and uninsured vehicle. In respect of those charges, he entered pleas of guilty. He entered a plea of not guilty to the dangerous driving charge and he was acquitted of this charge.

9 Mr Gardiner said that he believed that the four convictions precluded him from seeking compensation. It was put to him that he did indeed succeed in defending the one charge that was defensible and that upon being acquitted on the dangerous driving charge it would have been reasonable to obtain further advice, either from the Legal Aid solicitor or from the originally consulted private solicitor.

10 Mr Gardiner was also cross-examined about the extent of his knowledge of the claim brought against him by Mr McMaster.

11 He said that he been informed by his father that Mr McMaster was bringing a claim and that this reinforced his belief that he could not claim on his own behalf. He denied having seen the statement of claim notwithstanding and affidavit of service sworn to the effect that it had been served upon him personally. He denied having seen much of the correspondence directed to him concerning Mr McMaster's claim. He also stated that he was unaware that he was a defendant to Mr McMaster's proceedings until they came before the court in May 2006.

12 On that occasion, he attended at the court in response to a subpoena which he believed required him to give evidence in the claim. He was called into court by myself and informed that he was a party. Because he was unrepresented, I strongly recommended that he seek legal advice. As a consequence, he consulted his current solicitor and this current application has been brought before the court.

13 I have been urged by the Nominal Defendant not to accept Mr Gardiner as a witness of credit having regard to his evidence concerning his lack of knowledge of the claim by Mr McMaster. There were certainly aspects of his evidence that were less than satisfactory and the question is whether they result in a finding that his explanation was not satisfactory.

14 Section 40(2) of the Act requires that a full and satisfactory explanation provide 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. It further states that the application is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been justified in experiencing the same delay. This provision applies to both the explanation for the delay in lodging the claim and to my decision as to whether to grant leave to commence proceedings out of time.

15 I have been provided with two authorities by the Nominal Defendant both dealing with the exercise to be undertaken in determining whether the explanation was satisfactory. Those authorities were Figliuzzi v Yonan [2005] NSWCA 290 and Smith v Grant [2006] NSWCA 244. These authorities emphasise the importance of evaluating the reasons for the delay put forward by an applicant against the question of what might have been expected of a reasonable person in the applicant's position.

16 In both decisions, reference was made to the reasons of Gleeson CJ in Russo v Aiello (2003) 215 CLR 643 at 646 para (7) to the effect that; "The focus of the statutory concept of a satisfactory explanation is upon justifying delay rather than excusing it."

17 Gleeson CJ went onto say that; "It is therefore necessary to reach a conclusion that the conduct of the applicant can be justified by reference to the way in which a reasonable person in his or her position could have been expected to behave."

18 In Mr Gardiner's case, it is readily apparent what a reasonable person in his position should have done namely, seek further legal advice. The question is whether a reasonable person in his position would have done so.

19 At the time of the accident, Mr Gardiner was twenty-two years old, he was a labourer of limited education with no prior experience of any compensation claims, no legal training and no exposure, as in Figliuzzi, to lawyers or legal procedures. The solicitor he initially consulted did not show enthusiasm for his claim. He encouraged him without reference to time limits and procedural requirements to await the outcome of the traffic charges. The question is would a reasonable person in Mr Gardiner's position have raised the issue of compensation with the Legal Aid solicitor?

20 Mr Gardiner's position was that he had not succeeded on the traffic charges.

21 Subsequently, the statement of claim was issued by Mr McMaster in which it was alleged against Mr Gardiner that he was responsible for the accident. In my view, a reasonable person in such a position would have been justified in proceeding in the belief that he was not able to claim compensation and that further legal advice would not alter that situation.

22 As to the remaining issue namely, the monetary threshold, it was suggested that the applicant could not establish that he would secure damages to the threshold required by s 52(4) of $65,000.

23 Mr Gardiner's right knee was injured to the point where it is now fused and his leg is permanently stiff causing him to limp. He complains of back and hip pain as a consequence of his altered gait. His suffered a number of fractures to his right hand. His right index finger has been amputated and this causes him serious discomfort. His right ring and little fingers are deformed. He is right hand dominant. His injuries and disabilities must therefore fall into the serious category. The effect upon the income earning capacity of this unskilled, former labourer is obvious.

24 It is likely that issues of contributory negligence will be aired in the course of any proceedings that he commences, particularly having regard to the level of alcohol recorded in his bloodstream at the time of the accident. Notwithstanding this, I find it probable that damages will exceed the $65,000 threshold.

25 In the circumstances, I find that the explanation provided for both the purposes of ss 43(a) and 52(4) of the Motor Accidents Act 1988 was both full and satisfactory. Further I find that in the absence of prejudice preventing a fair trial of the issues, it would be fair and just to extend time for the commencement of proceedings. It is conceded by Mr Gardiner that he must meet the costs of the application.

26 The orders which I make are as follows. 1. Pursuant to s 52(4) of the Motor Accidents Act 1998, the applicant is granted leave to commence proceedings in respect of the injuries suffered in the motor vehicle accident in which he was involved on 5 July 1999. 2. A statement of claim is to be filed and served not later than twenty-eight days after it is agreed between the applicant and the respondent that the requirements of s 50(A) of the Motor Accidents Act 1988 have been complied with. 3. Liberty to apply in the event that there is a dispute on this issue. 4. The applicant is to pay the respondent's costs of the application. Payment deferred pending the outcome of proceedings. 5. The exhibits and affidavits filed in respect of the application are returned.

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