Grace v Dennis

District Court of NSW|2019-08-15

Table of Contents Summons [1] Background [2] Issues for determination [3] - [6] Evidence [7] - [11] Legislation [12] - [13] Applicable legal principles [14] - [24] Factual circumstances of the plaintiff [25] - [63] Medical assessment chronology [64] - [93] Defendant's evidentiary material [94] - [98] Submissions of parties [99] - [112] Determination [113] - [132] Whether the plaintiff's explanation for the delay is full [114] - [130] Whether the plaintiff's explanation is satisfactory [131] Conclusion concerning plaintiff's explanation for delay [132] Disposition [133] Costs [134] Orders [135]

Summons

The plaintiff, Bernadette Grace, filed this summons on 9 May 2019, seeking leave, pursuant to s 109(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act"), to commence proceedings otherwise out-of-time, against the defendant, Michael Dennis, in respect of injuries received in a motor vehicle accident on 6 February 2012.

Background

At about 2.55pm on Monday, 6 February 2012, the defendant drove his vehicle into the rear of the plaintiff's stationary vehicle. In that collision, the plaintiff sustained musculo-ligamentous injuries to the neck, shoulders, lower back, bruising to her forehead, back of the head, her chest and to both knees. As a result she has developed significant physical and psychological disabilities. Her background circumstances, and those disabilities, have been influential in the delay she has experienced in commencing proceedings to claim damages for her injuries. The 3 year limitation period for commencing the proceedings expired on 6 February 2015.

Issues for determination

Initially, the matters at issue in this summons concerned first, an explanation for the delay experienced by the plaintiff in commencing the proceedings, where that delay must be fully and satisfactorily explained by the plaintiff, and secondly, whether the damages awardable would be likely to exceed the applicable statutory threshold amount of $112,000.
During the course of the hearing, despite earlier adamant resistance, the defendant ultimately conceded the threshold issue of quantum. The defendant also conceded that there was no claim of a material or a significant prejudice that would prevent a fair trial, or that would preclude a grant of the leave sought.
The delay requiring explanation may be conveniently divided into three separate periods for analysis. First, the period of delay between 6 February 2012 and 6 February 2015, the latter date being the point in time when the applicable 3 year limitation period expired, secondly, the period of delay of 4 years and 3 months, between 7 February 2015 and the filing of the present summons on 9 May 2019, and thirdly, the period of delay of 3 months between the filing of the summons and the present hearing: s 66(2) of the Motor Accidents Compensation Act.
The defendant has characterised the delay as being over 7 years. On the evidence, I consider that submission to be an exaggerated and overly simplistic view of the circumstances.

Evidence

In support of her claim for leave, the plaintiff relied upon the following affidavits: 1. Her own affidavit sworn 12 June 2019; 2. Her own affidavit sworn 8 August 2019; 3. The affidavit of her husband, Mr William Grace, sworn on 8 August 2019; 4. The affidavit of her solicitor, Mr Sean Radburn, sworn on 8 August 2019. That affidavit annexed 248 pages of relevant medical reports relating to the plaintiff.
The plaintiff was cross-examined on her affidavits on limited issues.
The defendant relied upon the following affidavits: 1. The affidavit of Mr Thomas Lyons, sworn on 1 July 2019; 2. The affidavit of Mr Thomas Lyons, sworn on 4 July 2019; 3. The affidavit of Mr Thomas Lyons, sworn on 8 August 2019; 4. The affidavit of Mr Thomas Lyons, sworn on 9 August 2019.
The plaintiff had initially raised a schedule of objections (MFI "3"), to the affidavits of the defendant's solicitor, Mr Lyons. However, the bulk of those objections became otiose once the defendant conceded the quantum issue raised by s 109(3)(b) of the MAC Act. The remainder of the objections in reality raised questions concerning the weight to be placed on certain portions of the documents annexed to the affidavits of Mr Lyons. The hearing proceeded upon that basis. Mr Lyons was not cross-examined on the content of his affidavits.
The defendant sought to place significance on copies of certain subpoenaed documents annexed to the affidavit of Mr Lyons relating to the content of the plaintiff's undergraduate studies whilst she was proceeding to obtain her law degree. The plaintiff was not a lawyer either at the time of the accident, or at any time during which the unexpired limitation period was current. The suggestion made on behalf of the defendant was that, whilst the plaintiff was a law student, she ought to have had a relevant awareness of the applicable limitation period for this claim. For the reasons that will become apparent, I have not accepted that submission.

Legislation

Section 109 of the MAC Act provides as follows: 109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) 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, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
The expression full and satisfactory as referred to in s 109(3)(a) of the MAC Act is defined in s 66(2) of that Act 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."

Applicable legal principles

The above statutory provisions, which have in the past caused procedural complexities and difficulties for lay persons and lawyers in many cases over the years since their enactment in 1999, have been the subject of much judicial consideration. This has led to a body of well understood principles concerning how such cases should be determined.
A full and satisfactory explanation for the delay in commencing proceedings under the MAC Act must relevantly address two elements for an evaluative judgment to be made. The first element must include a full account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the time the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay: Karambelas v Zakvic (No 2) [2014] NSWCA 433, at [17] and [36]-[37], as applied in Djakovic v Perez [2015] NSWCA 174, at [15]-[18].
The onus of satisfying the Court that the conditions for the grant of leave as imposed by s 109(3) of the MAC Act, rests with the plaintiff: Eades v Gunestepe [2012] NSWCA 204, at [52].
Absent evidence of any specific advice given by a solicitor, the claimant, and not the claimant's solicitor, will most often be the best person to provide information on the claimant's conduct: Smith v Grant [2006] NSWCA 244, at [26].
In some situations, dilatory conduct by a solicitor may require explanation, but the inquiry is not aimed at identifying blameworthiness or fault on the part of a solicitor. Rather, the inquiry is aimed at identifying the objectively identifiable matters that form part of a full explanation: Smith v Grant [2006] NSWCA 244, at [30]-[34].
In determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay in question, it is not necessary for the claimant to anticipate each criticism that might have been made of the claimant's solicitor and identify knowledge or belief of compliance or non-compliance with a particular standard of expected diligence. Blameworthiness of the solicitor is not the issue to be determined: Smith v Grant [2006] NSWCA 244, at [33]-[36]; [74].
The proper construction of s 66 and s 109 of the MAC Act concerning a claimant's explanation does not extend to a broader inquiry to encompass persons acting or purporting to act on a claimant's behalf, such as a solicitor: Walker v Howard [2009] NSWCA 408, at [55]-[56].
In providing an explanation for delay a claimant must provide complete and not selective information: Walker v Howard [2009] NSWCA 408, at [73].
In determining "the position of the claimant", that person's disabilities are a relevant consideration in making the required objective determination: Walker v Howard [2009] NSWCA 408, at [64]; [97]; [107].
Before considering the plaintiff's factual circumstances, as a framework for the required analysis, I set out a broad chronology of events extracted from the competing chronologies presented by the respective parties: MFI "1" and MFI "4". (1) 6 February 2012 Date of accident. The plaintiff sustained neck, back, shoulder and psychological injuries in the subject accident. The plaintiff was absent from her work following her injuries; (2) 12 March 2012 The plaintiff completed a personal injury claim form; (3) 30 April 2012 Defendant's insurer requested particulars; (4) February 2013 Plaintiff ceased employment in her husband's firm; (5) 1 March 2013 Unsuccessful attempt to return to work in her husband's firm; (6) 13 March 2013 Plaintiff commenced alternative employment as a valuer with Southern Cross Valuations; (7) 29 January 2015 Lodgement of application for a MAS assessment of the plaintiff's physical and psychological injuries; (8) 6 February 2015 Expiry of limitation period; (9) 4 May 2015 MAS Assessment Certificate by Assessor Hew; (10) 15 May 2015 Receipt of MAS Certificate by Assessor Hew; (11) 8 June 2015 MAS Assessment Certificate by Assessor Lovell; (12) 18 June 2015 Further MAS Assessment Certificate by Assessor Lovell; (13) 19 June 2015 Settlement discussions; (14) 11 September 2015 Moray & Agnew advise plaintiff's first solicitor, her husband, that they act for defendant; (15) January 2016 Brother-in-law of plaintiff diagnosed with motor neurone disease; (16) 6 June 2016 Plaintiff admitted to practise as a solicitor; (17) 28 October 2016 Plaintiff's employment with Southern Cross Valuations terminated; (18) 1 November 2016 Plaintiff returned to work in her husband's firm, as a paralegal; (19) 18 November 2016 Death of plaintiff's father-in-law, plaintiff's first solicitor, her husband, seeks a settlement conference; (20) 30 November 2016 Settlement conference resulting in exchange of offers on 14 November 2016 (plaintiff) and 15 December 2016 (defendant); (21) 23 January 2017 Plaintiff re-commenced working as a solicitor in her husband's firm; (22) 7 May 2017 Plaintiff ceased working as a solicitor but remained employed in an administrative capacity in her husband's firm; (23) 16 May 2017 Plaintiff ceased work altogether in her husband's firm; (24) 17 May 2017 Plaintiff commenced work with Herron Todd White, Valuers; (25) 30 June 2017 Plaintiff's husband's firm ceased to exist and she therefore required alternative representation; (26) 1 July 2017 Miceal Ambrose Lawyers commenced to act for the plaintiff; (27) 25 July 2017 CARS Application Forms served; (28) 8 September 2017 Plaintiff's employment with Herron Todd White terminated; (29) January 2018 Death of plaintiff's brother-in-law; (30) 5 October 2018 Conference with solicitor and counsel regarding CARS decision; (31) 5 April 2019 CARS Certificate by Assessor Daley; (32) 1 May 2019 Plaintiff appointed her present solicitors, Somerville Laundry Lomax to act for her; (33) 9 May 2019 Summons filed; (34) 27 May 2019 Procedural orders made to facilitate preparation for the present hearing.

[Emphasis added]

I now turn to a consideration of the plaintiff's factual circumstances relevant to this application. The defendant made no credit challenges to the plaintiff's evidence.

Factual circumstances of the plaintiff

The plaintiff was 54 years at the time of her injury. She is now aged 61 years. She has not been subject to any legal disability or incapacity that would have otherwise impeded her ability to commence litigation to claim damages arising from her accident that occurred on 6 February 2012.
Since that accident, the plaintiff has undergone many medical and medico-legal consultations and assessments. No challenges were made to the histories recorded by those practitioners. She has had three firms of solicitors acting for her in relation to this claim, including her present solicitors, who were retained on 1 May 2019.
In this case, the plaintiff's circumstances have become unusually complicated due to the aggregation of a series of unfortunate events surrounding the effects of her injuries, and which have been instrumental in the occurrence of delay associated with her present claim.
Before the accident the plaintiff lived on a 65 acre farm with livestock. She took an active role in the management of that farm, including use of ride-on farm equipment. She managed the housework, and also managed to have some time for leisure activities. She was in good general physical health before the accident apart from some residual pre-existing right shoulder and sciatica symptoms. She was also taking some anti-depressant medication, apparently as maintenance treatment for a pre-accident history of post-natal depression since 1997, which has been the subject of annual reviews by a specialist psychiatrist.
The plaintiff had previously worked in the real estate industry before taking time out of work between 1989 and 1996 to raise her four children. In 1996 she commenced employment in her husband's legal practice where she worked in an administrative capacity as an office manager and paralegal. At the time of the accident the plaintiff was a second year law student.
The plaintiff's husband was a solicitor who had relevant experience in dealing with personal injury litigation. She instructed him to deal with the necessary requirements to pursue a claim for damages for her injuries.
The plaintiff duly completed and lodged a personal injury claim form on 12 March 2012. On 3 May 2012, the defendant's Compulsory Third Party (CTP) insurer promptly admitted liability for the plaintiff's claim: s 81 of the MAC Act. Those events occurred well within the 3 year limitation period for her claim.
Whilst working in a paralegal position the plaintiff embarked upon an associate degree in law. In 2012, she later transferred her studies to the degree course for bachelor of laws at Southern Cross University. She completed that degree course in 2015. She was admitted to practise as a solicitor in NSW on 6 June 2016. She practised as a solicitor for some months. In her undergraduate studies, she had studied the theory of tort law. In her studies, limitation questions had been dealt with briefly. She has never practised tort law. She has never taken instructions or given advice in such matters. Her knowledge and interest concerning the Limitation Act 1969 (NSW) has only arisen in the context of her present case.
At this point, it is relevant to record something of the plaintiff's evolving and unfortunate post-accident circumstances.
In addition to the plaintiff's post-accident physical symptoms relating to her neck, back, and shoulder injuries, the plaintiff developed psychological symptoms. The plaintiff described her residual problems as including difficulty concentrating and paying attention to detail, loss of confidence, indecisiveness, forgetfulness, perception of deteriorating memory, headaches and constant experience of pain. These symptoms evolved into what was recorded by a psychiatrist engaged by the defendant as including mixed anxiety and depressive symptoms, superimposed over an underlying chronic dysthymic condition. A more recent psychiatric opinion from Dr Stephen Huntsman, which was obtained by her own solicitor, identified a diagnosis of chronic post-traumatic stress disorder, an adjustment disorder with depressed mood, of prolonged duration.
In February 2013, as a consequence of the cumulative evolution of these matters, the plaintiff left her employment in her husband's firm. She was able to obtain alternative mitigatory employment in her former vocation as a property valuer. That employment was with a sympathetic employer who permitted her to rest as required, to work from home, and where needed, to be provided with a driver to take her to site visits for valuations.
Throughout those events, whilst the plaintiff's disabilities continued, she remained under professional medical supervision and treatment. She also underwent investigations for her apprehension that she had an accident-related cognitive impairment. Those events must have been very concerning and distracting for her at the time.
Against that background, the plaintiff's husband was personally involved in some corrosive litigation, described elsewhere as hostile litigation, that had been instituted against him by one of his former clients. The stressful effects of that litigation led him to incur a debilitating mental illness. This ultimately resulted in him being unable to continue to practise as a solicitor.
Throughout the time until her husband ceased to practise, the plaintiff believed that her claim for damages had been attended to in an appropriate manner although it had moved slowly. She had no actual knowledge to the contrary. Unfortunately, as the plaintiff came to learn, at a later point in time, her claim had not been progressed appropriately.
In July 2014, the plaintiff's husband became so seriously ill that he required hospitalisation for a psychological illness that was directly related to the litigation that was being pressed against him. Despite his attempts to manage his practice and his caseload, he fell behind in his work. He found that he could not maintain his work efforts, he could not deal appropriately with client files and matters. He was unable to think clearly and found that he could not maintain interest and effort in the professional demands of his practice. This included in relation to his responsibilities for the plaintiff's claim under present consideration. That evidence was not challenged.
Ultimately, his treating doctor certified that the effect of the litigation activity of that former client had precipitated in him a psychological illness which has prevented him from continuing to practise as a solicitor. Consequently, after due consideration, on 30 June 2017, on health grounds, the Law Society of NSW suspended his practising certificate, which forced him to cease acting for the plaintiff in respect of her claim for damages arising from the subject accident.
In the lead-up to those events, the plaintiff's existence was somewhat chaotic because she had to attend to family, farm and domestic responsibilities, she had to care for her husband, and assist other family members, and at the same time, work and progress her legal studies. She did all of this with great difficulty because of the post-accident difficulties that have already been described.
Beforehand, the plaintiff's husband, as her solicitor, had taken some initiating procedural steps in respect of her claim. However, a formal litigated claim was never filed on her behalf within the specified time limit. He had never advised her that her claim was subject to a limitation period. That evidence was not challenged.
However, the defendant argued that, as a consequence of her husband's illness, the plaintiff ought to have made enquiries about the progress of her claim for possible procedural problems that were likely to have beset that claim. In my view, whilst that was a convenient hindsight submission, it is inapt to the plaintiff's circumstances. This is because the plaintiff's involvement in her husband's practice was not in a professional capacity. Locum practitioners were engaged to deal with such matters, and she was otherwise fully occupied with the other concerns already summarised.
Although the plaintiff was without doubt aware of her husband's health problems, and was involved in assisting to manage those problems, between 13 March 2013 and 1 November 2016, she was no longer employed in her husband's firm.
In that period, and subsequently, she worked as a valuer. She ultimately completed her legal studies and was admitted as a solicitor on 6 June 2016. Concurrently, she was making great efforts to manage the family rural property, and deal with the adverse family circumstances due to illnesses and bereavement.
It was only after the expiry of the limitation period that the plaintiff learned that her husband had unfortunately not competently managed her litigation.
A significant step taken in relation to the plaintiff's claim was that before her husband had ceased practise, on 29 January 2015, some 8 days before the expiry of the applicable limitation period, an application was lodged with the Medical Assessment Service (MAS) for an assessment of the plaintiff's physical and psychological difficulties. This was plainly done in the belief that her claim could proceed. As the CTP insurer had admitted liability, this was the next step to be undertaken in proceeding with the Claims Resolution Service (CARS) process. The plaintiff believed that she was entitled to pursue her claim without legal impediment.
At all times before and during those events the plaintiff's husband had been acting as her solicitor. She had no specific knowledge of the limitation period that required her to commence legal proceedings within 3 years of the date of the accident. At no time did her husband advise her of that requirement. There was no challenge to that evidence. In the meantime, the already described stressful chaotic circumstances of the plaintiff's life continued.
On 1 July 2017, the plaintiff was compelled to secure alternative legal representation because her husband had ceased practice. She immediately engaged her second solicitor to act for her and to continue the pursuit of her claim. However, this was at a time when the limitation period for her claim had already expired. Within a month of engaging her second solicitor, on 25 July 2017 her claim was referred for a CARS assessment. There was nothing further that the plaintiff's second solicitor could have done in order to advance her claim whilst it was effectively becalmed in the CARS assessment process. At that time the plaintiff still did not know that to proceed with her claim, she required the leave of the Court.
A considerable procedural delay of almost 21 months was then incurred whilst the plaintiff's claim continued within the CARS process. During that time, the plaintiff's understanding, now shown to be a mistaken understanding, was that once the CTP insurer had admitted liability, there was no limitation as to when the matter proceeded to a CARS hearing. Accordingly, she mistakenly believed that her matter was in order. It appears that she had assumed this was so because it was proceeding through the CARS process.
Ultimately, on 5 October 2018, a CARS hearing took place. On 5 April 2019, the CARS Assessor issued her Assessment Certificate.
In the interim during that period, it was not until 8 October 2018, in the context of a post-CARS hearing, whilst in conference with her second solicitor and the counsel retained by that solicitor, that she gained an understanding of what might possibly occur in the event of an adverse result in a CARS assessment. At that time, she was told she could then bring proceedings in this Court. However, she was not told that due to the effluxion of time, it would be necessary for her to first seek the leave of the Court to enable her to proceed with her claim.
On 1 May 2019, following the issue of the CARS assessment certificate on 5 April 2019, the plaintiff engaged her present solicitor, Mr Radburn, her third solicitor, to act for her in relation to her claim. On 9 May 2019, within a week of being retained, her present solicitor filed the summons under present consideration.
Since 1 May 2019, when Mr Radburn, commenced to act for her, the matter has proceeded with due despatch. He has relevantly assembled a series of 23 medical reports and certificates which are annexed to his affidavit. The histories the plaintiff had provided to the various examiners who issued those reports essentially set out the plaintiff's problems and circumstances as already summarised.
At this point it is relevant to refer to an aspect of the defendant's documentation. A key document relied upon by the defendant comprised part of Annexure "H" to the affidavit of Mr Lyons sworn on 8 August 2019. That document consisted of a copy of a three page submission made by the plaintiff by which she sought special consideration for the marking of her university examinations in Property Law and Constitutional Law, for which she had respectively undertaken on 29 September 2014, and 1 October 2014.
That document set out, poignantly, the stressful personal and family difficulties under which the plaintiff had been functioning in the lead-up to those examinations. I infer from the continuum that operated until those dates, that the plaintiff's described adverse family and health factors continued to deleteriously impact upon her, at least up until the time the relevant limitation period for this claim had expired, on 6 February 2015.
It is not necessary to again set out all of those adverse stressors operating on the plaintiff in that time. They are adequately set out in the medical reports. It is sufficient to here record the essence, namely that the plaintiff had been pre-occupied with managing the family farm and livestock, the associated financial paperwork, attending to the needs of elderly relatives in what little spare time she had, and dealing with locum practitioners engaged to manage her husband's legal practice during his prolonged illness. Dealing with those circumstances was inherently stressful for the plaintiff. Added into the mix of those stresses, was the need for her to manage the intermittent and ongoing health crises of her elderly parents and parents-in-law.
The plaintiff made reference to having been adversely affected by those circumstances. Her description of having been flummoxed was an understatement. Her concentration was affected. She experienced intrusive and invasive thought processes. She was sleep deprived, she felt ill and she was exhausted.
In addition to those matters, she was also providing support to her husband with regard to his ongoing illness. She also found herself having to assist her husband's lawyers in seeking to defend him from the hostile litigation efforts of a former client.
The plaintiff aptly referred to those combined events as extremely stressful for her, where her family circumstances were out of her control. In those events, it is unsurprising that she had little if any time to consider her own needs and interests, including giving attention to the particular procedural stage her own claim had reached, or had not reached.
The defendant's solicitor had obtained the document referred to as Annexure "H" to Mr Lyons' affidavit sworn on 8 August 2019 from documents produced on subpoena, as already indicated. The defendant's solicitor sent a copy of that document to the solicitor for the plaintiff on 5 August 2019, and maintained the argued position that the plaintiff's explanation for the delay in question was neither full nor satisfactory.
Interestingly, in the same letter setting out the defendant's cited view in that regard, the defendant's solicitor also indicated that "our client does not accept that the plaintiff satisfies the s 109(3)(b) threshold". That view was short-lived as the defendant abandoned it during the course of argument at the hearing. This was in circumstances where the medical evidence compellingly indicated that the plaintiff satisfied that threshold.
I now turn to a consideration of salient features within the content of the medical evidence.

Medical assessment chronology

A review of the chronological sequence of medical assessments, and the factual content of those assessments, reveals the following matters of significance. All page references in the paragraphs that follow, are references to the enumeration applied to the bundle of reports annexed to the affidavit of the plaintiff's present solicitor, Mr Radburn.
On 19 March 2012, the plaintiff was neurologically tested by Professor Geoffrey Boyce, at which time she was diagnosed with bilateral carpal tunnel syndrome but with impaired ulnar and median nerve conduction in both upper limbs indicative of proximal compression at a cervical spine level: pp 1 - 4.
On 2 April 2012, the plaintiff was seen by her general practitioner, Dr David Havil. In a report to the CTP insurer, he recorded a history of the accident, and related injuries comprising a head injury from contact with the steering wheel, neck, shoulder and upper limb pain, a rotator cuff injury to the right shoulder, low back pain, increased anxiety, headaches, an adjustment disorder, and interference with concentration that she needed to have for her legal studies. These matters were identified as interfering with her ability to work: pp 5 - 7.
On 2 April 2012, an MRI scan of the plaintiff's neck to investigate her neck pain and radicular upper limb symptoms showed the presence of C4/5 osteophytes but without significant foraminal narrowing: p 8.
On 4 April 2012, a right shoulder ultrasound showed effusion of the long head of the plaintiff's right biceps tendon and subacromial bursitis: p 19.
On 25 February 2013, at the request of the CTP insurer, the plaintiff was assessed by Dr Steve Goode, an occupational physician. In his report to the insurer on 5 March 2013, Dr Goode noted an extensive history of the consequences of her physical injuries, as superimposed upon a pre-existing history of depression: pp 10 - 25;
On 5 March 2013, Dr Goode issued a supplementary report to the CTP insurer in which he commented upon what he considered to be the temporary nature of the plaintiff's musculo-ligamentous and soft tissue injuries for the purpose of assessing whole person impairment: pp 26 - 28.
On 27 March 2013, the plaintiff was seen by Dr David Walker, a neurologist, who advised Dr Havil that the plaintiff's soft tissue pains were as a result of the lingering effects of the whiplash type injury she had suffered in the accident: p 29.
On 25 November 2013, at the request of her first former solicitor, the plaintiff was assessed by Dr Thomas Sheehan, a consultant in orthopaedic and musculo-skeletal medicine. In his two reports dated 3 December 2013, Dr Sheehan stated that the plaintiff had sustained significant musculo-ligamentous strains involving her neck, and aggravation of early degenerative changes in her neck. He made an 18 per cent permanent whole person impairment of the plaintiff due to the subject accident: pp 31 - 41.
On 4 May 2015, MAS Assessor Charles Hew, assessed the plaintiff's permanent physical impairment for her neck, knee, shoulder and hip problems, at no more than 10 per cent: pp 239 - 248.
On 18 May 2015, MAS Assessor Derek Lovell, a psychiatrist, assessed the plaintiff's permanent impairment for exacerbation of anxiety and depression, at no more than 10 per cent: pp 231 - 238.
On 5 August 2015, the plaintiff underwent neurological studies by Professor John Corbett and Dr Ventzi Bonev. Those tests showed reduced nerve conduction velocities in the ulnar nerves: pp 42 - 43.
On 11 November 2015, at the request of the solicitors for the CTP insurer, the plaintiff was assessed by Dr John Chalk, a consultant psychiatrist. In his report, Dr Chalk recorded a detailed history which included complaints of persisting anxiety, generalised anxiety, social isolation, loss of confidence and other psychological symptoms. He identified a diagnosis of an adjustment disorder with anxious and depressed mood, related to the accident. He also tabulated the reasons for his assessment, which included the statement that the plaintiff struggled with her studies: pp 44 - 56.
On 11 November 2015, at the request of the solicitor for the CTP insurer, the plaintiff was assessed by Dr Peter Boys, an orthopaedic surgeon, who reported that the plaintiff had musculo-ligamentous injuries to her neck, low back, and chondromalacia to her knees associated with the effects of the accident: pp 57 - 64.
On 3 February 2016, at the request of the solicitor for the CTP insurer, the plaintiff was re-examined by Dr Goode. In his report dated 9 February 2016, Dr Goode provided the defendant with an updated account of the plaintiff's history and her presenting complaints. His report and commentary was extensive: pp 65 - 80.
On 29 March 2016, after some delay due to a dispute between the respective solicitors, the plaintiff underwent a joint neuro-psychological assessment by Ms Debbie Anderson. She tested the plaintiff in light of her claims of cognitive difficulties. On testing, she noted unexpected clinically significant memory impairment, a persisting adjustment disorder, decreased effectiveness of concentration and memory function: pp 83 - 98.
On 4 May 2016, at the request of the solicitor for the CTP insurer, Dr Chalk addressed a question by which the defendant sought to clarify his previous opinion with regard to the plaintiff's capacity to work as a lawyer. He did so without apparent difficulty: pp 81 - 82.
On 28 November 2016, Ms Anderson provided the solicitor for the defendant with a clarificatory commentary in answer to some unidentified questions that she had been asked to address: pp 99 - 100.
On 5 February 2017, at the request of her first former solicitor, the plaintiff was re-examined by Dr Sheehan. In his 26 February 2017 report, Dr Sheehan updated his previous opinions, and stated that the plaintiff described her symptoms in a straightforward manner, without proneness towards overstatement or exaggeration. He expressed the opinion that the plaintiff had suffered significant musculo-ligamentous strains and tears to her cervical spine, an aggravation of pre-existing asymptomatic degenerative changes involving her neck, and other related injuries: pp 114 - 124.
On 6 February 2017, at the request of her first solicitor, the plaintiff was assessed by Professor Paul Darveniza, a consultant neurologist. In his report, Dr Darveniza expressed the view that the plaintiff's physical complaints, which he noted to have affected her neck, low back, both shoulders and knees, have been compounded by a severe post-traumatic stress disorder and depression, which has interfered with her attention and concentration, and which prevented her from working full-time as a solicitor, where careful attention to detail was required: pp 101 - 103.
On 14 February 2017, at the request of her first solicitor, the plaintiff was examined and assessed by Dr Stephen Huntsman, a consultant psychiatrist. Dr Huntsman reported that in his opinion, the plaintiff had chronic post-traumatic stress disorder, adjustment disorder with depressed mood, with prolonged duration due to the chronic enduring stressor of pain: pp 104 - 111.
On 16 February 2017, at the request of the solicitor for the defendant's CTP insurer, Ms Anderson provided a commentary in which she addressed questions asked of her by the defendant's solicitor: pp 112 - 113.
On 26 February 2017, Dr Sheehan issued a further report in which he assessed the plaintiff's permanent whole person impairment of 18 per cent: pp 125 - 127.
On 8 September 2017, at the request of the plaintiff's second former solicitor, the plaintiff was assessed by Ms Sanja Zeman, an occupational therapist. In her report dated 16 October 2017, Ms Zeman expressed a number of opinions on the plaintiff's need for domestic assistance and treatments: pp 128 - 167.
On 31 October 2017, at the request of the solicitor for the defendant's CTP insurer, the plaintiff's domestic assistance and allied needs were assessed by Ms Belinda Moylan: pp 183 - 210.
On 3 November 2017, at the request of the solicitor for the defendant's CTP insurer, the plaintiff was re-assessed by Dr Chalk.
On 3 April 2018, at the request of the solicitor for the defendant's CTP insurer, Dr Chalk provided a commentary to the defendant's solicitors on a series of documents that were provided to him for that purpose: pp 223 - 228.
On 12 April 2018, at the request of the plaintiff's second solicitor, Ms Zeman was asked to provide a commentary on the occupational therapy assessment and opinion of Ms Moylan: pp 211 - 222.
On 8 August 2018, at the request of the solicitor for the defendant's CTP insurer, Ms Anderson provided the defendant's solicitor with a commentary on the plaintiff's employment history and academic transcript: pp 229 - 230.
It is apparent from the above array of reports, that the defendant has had ample opportunity to investigate the plaintiff's post-accident complaints such that, it is plain no relevant prejudice arises from the circumstances of the delay incurred in this case. The defendant made no submissions to the contrary.

Defendant's evidentiary material

The material annexed to the successive affidavits of the defendant's solicitor comprised: the plaintiff's curriculum vitae; the transcript of her academic studies; documentation produced by the NSW College of Law; a record of dates of leave of absences; MAS Assessors' reports and certificates (Affidavit sworn 1 July 2019); redacted emails and forms relating to the plaintiff's professional placements whilst a student and related correspondence (Affidavit sworn on 4 July 2019); correspondence concerning her placement as part of her course requirements; the defendant's solicitor's letter of rejection of the plaintiff's explanation for the delay; and the plaintiff's submission to her University in 2014 seeking marking consideration due to extenuating personal circumstances (Affidavit sworn on 8 January 2019); a coursework assignment paper dated 14 May 2014 written by the plaintiff on her understanding of the Law of Trespass, which contained a brief reference to the Limitation of Actions Act 1974 (Qld) (Affidavit sworn on 9 August 2019).
In my assessment, none of those materials operate to derogate from the plaintiff's evidence that she lacked awareness of the limitation period that applied to her claim. In my view, none of that material relevantly detracted from, or contradicted the fullness or the satisfactory nature of the plaintiff's explanation for the delay she has experienced for the delay she has experienced in bringing proceedings for damages arising from her accident on 6 February 2015.
In relation to the defendant's reference to the Queensland Limitation of Actions Act 1974, the context is important. The plaintiff obtained her law degree from the Southern Cross University in NSW. She needed to complete a Torts component which was arranged by that University to be undertaken in conjunction with the Queensland University of Technology as a credit towards her degree. This was due to timetabling issues.
I accept the submission made by counsel for the plaintiff that the limitation provisions within the relevant NSW and Qld statutes are significantly different. I also accept the submission that the plaintiff's citation of the Limitation of Actions Act 1974 (Qld) in her cited academic paper has no decisive relevance to these proceedings. Her evidence as to her unawareness of the limitation provisions within the MAC Act before 1 May 2019 remains uncontradicted. In my view, it would be unreasonable to infer otherwise from the content of her Torts assignment submitted on 14 May 2014, at a time when her life's circumstances were somewhat chaotic, as already described.
I now turn to the submissions of the respective parties as to the appropriate disposition of this summons.

Submissions of the parties

The plaintiff submitted that the affidavit evidence upon which she relies has provided a full and satisfactory explanation for the delay in commencing proceedings. That evidence was not materially challenged or contradicted. Nor was it inherently improbable. The plaintiff further submitted that a reasonable person in her position would have been justified in experiencing the delays she has incurred in this case because of the confluence of factors referred to in her factual circumstances as outlined above.
On its face, having regard to the facts and principles that have been identified, I consider that submission to be compelling and capable of acceptance. However, it is necessary to also consider the defendant's contrary submissions.
In contrast, the defendant submitted that the plaintiff's explanations were neither full nor satisfactory. The defendant therefore argued that the plaintiff should be refused leave to proceed.
The defendant drew attention to the plaintiff's personal injury claim form lodged on 12 March 2012, and in particular, to the advisory steps set out on page 5 of that document. In my view, that reference is of no relevance to the consideration required here as the form is deficient in the sense that it says nothing about time limitations for lodging litigated claims. If the intention behind the form was to assist claimants, perhaps a redrafting could usefully include a paragraph 6A.
In order to seek to contradict the plaintiff's evidence as to her work history, the defendant drew attention to a College of Law document in which the plaintiff set out her work placement particulars. The defendant's reliance on that document was problematic because, as counsel for the plaintiff pointed out in final submissions, the document contains an obvious date entry error within it (Affidavit of Mr Lyons sworn on 1 July 2019). The plaintiff's evidence has not been relevantly contradicted.
The defendant pointed to the plaintiff's work experience placement form dated 19 October 2012 (Annexure p 12, to the Affidavit of Mr Lyons sworn on 4 July 2019). The defendant argued that the plaintiff's failure to include in her explanation, a two week placement she had with Carter's Law Firm between 18 October 2012 and 2 November 2012, was a material omission that detracted from the fullness of her explanation. I do not accept that submission. The placement was part of her University course the details of which were disclosed by the plaintiff. There must be limits on the extent of inclusions to be included in such explanations. I find the defendant's cited criticism to be unreasonable in the circumstances.
The defendant made reference to the plaintiff's email correspondence to her University Supervisor regarding her Corporations Law essay due on 8 April 2014, in which she referred to her difficult life's circumstances (Annexure p 18, to the Affidavit of Mr Lyons sworn on 4 July 2019). In my view, nothing in that correspondence detracts from the fullness of the explanation the plaintiff has provided in her evidence in these proceedings.
Similarly, I consider that the defendant's reference to the plaintiff's written submission to her University for special consideration for the marking of her examination papers for 29 September 2014 and 1 October 2014 (Annexure pp 18 - 20, to the Affidavit of Mr Lyons sworn on 8 August 2019), does not relevantly detract from, or contradict the evidence she has given in these proceedings concerning the fullness of her explanation for the delay in bringing her proceedings.
In essence, the defendant's submissions proceeded upon the premise that because her personal injury damages claim was taking so long to be finalised, she ought to have asked questions as to what was happening with her claim, and why it had not been completed, notwithstanding that she had no notice of a limitation problem. It was submitted that a reasonable person in her position would have asked such questions, and would not just leave the matter in the hands of solicitors.
I do not accept that submission as it is based on hindsight considerations and pays little if any regard to the chaotic and difficult circumstances in which the plaintiff found herself, as has already been described in my factual findings above. In fairness, those subjective factors must be taken into account in the evaluation of the plaintiff's explanations: Walker v Howard [2009] NSWCA 408, at [64]; [97]; [107]. I find the plaintiff's unchallenged account of her circumstances, credible and compellingly persuasive on this issue. I therefore do not accept the cited submission made on behalf of the defendant.
The defendant further submitted that the plaintiff's proffered explanation of her understanding to the effect that, since the CTP insurer admitted liability, there was no limitation as to when the matter could proceed to a CARS hearing, was not a full explanation because she had not explained the basis or the source of that knowledge.
I do not accept that submission because her explanation relevantly and sufficiently identified her knowledge and belief, and therefore explained her actions in not questioning the procedural status of her claim. The requirement is that she states her knowledge, belief and her actions, not the basis or the source of her knowledge and belief. The fact that her knowledge or belief was mistaken does not mean that explanation was not full, because it is the subjective position of the claimant that must be considered at that point in the evaluation: Smith v Grant [2006] NSWCA 244, at [26].
The defendant's submission that the plaintiff's explanation of the events was not full because she did not disclose working for Carter Law "for a period of time", this being two weeks. I have already indicated my rejection of that submission at [104] above. This submission should also be rejected because her placement at Carter's Law firm was a short term student placement, not a formal job. Furthermore, as was conceded by counsel for the defendant in the course of oral argument, there is scope for a full explanation to leave some room for omissions. In my view, the omission cited by the defendant was not material to the question of fullness.
The defendant made a submission to the effect that the plaintiff's engagement with her claim to the point of filling out a MAS form, having two MAS assessments and having settlement discussions whilst her first solicitor, her husband, ought to have led to a realisation that her claim was not being handled competently. In my view, that submission is flawed because it has conflated so many elements, the most important of which is that, as the chronology shows, the settlement discussions referred to by the defendant, took place on 19 June 2015 and 30 November 2016, over 4 months and 9 months after the limitation period had already expired. The submission is not based on a correct factual analysis. There is no evidence to contradict the plaintiff's explanation, which is not otherwise inherently improbable. The inferences sought by the defendant are not reasonably available. They are based on unwarranted speculations. Furthermore, the defendant's submission does not pay due regard to the plaintiff's subjective and chaotic personal circumstances, as earlier described. The submission is not consistent with a realistic appraisal of the plaintiff's adversity-affected circumstances that prevailed in the relevant timeframe: Walker v Howard [2009] NSWCA 408, at [64]; [97]; [107].

Determination

I now turn to a consideration of the delays incurred, and the plaintiff's explanations for those delays.

Whether the plaintiff's explanation for the delay is full

The relevant delays are first, from the date of the accident to the date of expiration of the limitation period on 6 February 2015 (3 years), secondly, from that date until the lodgement of the present summons on 9 May 2019 (4 years and 3 months), and thirdly, from that last date until the hearing of the summons (3 months)

As to the first period of delay - 6 February 2012 to 6 February 2015

As to the plaintiff's relevant knowledge, belief and actions during the first period of delay between 6 February 2012 and 6 February 2015, at an early stage post-accident, the plaintiff was obviously aware that she could make a claim for compensation for the injuries she sustained in the subject accident. This is evidenced by the fact that on 12 March 2012, she had completed a personal injury form. This is also evidenced by the fact that she engaged a lawyer, her husband, to handle and to process her claim.
From that time, and continuing until the expiry of the limitation period on 6 February 2015, absent any knowledge on her part to the contrary, the plaintiff was entitled to assume that her solicitor husband, with the requisite qualifications and experience in the handling of such claims, was acting appropriately to pursue and to maintain her right to claim compensation. In light of the plaintiff's unchallenged evidence, the inference of imputed knowledge to the contrary, as sought by the defendant, does not reasonably arise.
I do not accept the submission made by the defendant that the plaintiff's knowledge of her husband's illness and inability to attend to the demands of his practice with particular relevance to her claim, ought to have resulted in an inquiry on her part as to her legal position at that time, that is by July 2014, before the applicable limitation period expired. The unchallenged evidence is that the plaintiff only learned of the fact that her claim had not been handled competently much later, after the limitation period of 3 years had already expired.
The annexures to the affidavits of Mr Lyons sworn on 4 and 8 July 2019 support the proposition that the life circumstances of the plaintiff and that of her family were difficult. Those difficulties applied throughout the period during which the 3 year limitation period was running. That explanation, whilst simple, was credible and not challenged. In my view, it was sufficiently full and it was not selective: Walker v Howard [2009] NSWCA 408, at [73].
In my assessment, in considering the plaintiff's circumstances in that time, beset as she was with family and personal difficulties, including as affected by her multifaceted physical and psychological problems, as already described, a reasonable person in the position of the plaintiff, would have been justified in experiencing the same delay as that which was experienced by the plaintiff up until the time the 3 year limitation period expired: Karambelas v Zakvic (No 2) [2014] NSWCA 433, at [17].
This is because the plaintiff left the matter in the hands of her solicitor husband, she was stressed, overburdened with family and domestic tasks, she had depression and anxiety of prolonged duration, and she was experiencing difficult life circumstances. She was hardly in a position to question what was being done on her behalf, or to seek out alternative legal assistance.
In my view the plaintiff has provided a full explanation for that first identified period of delay: s 66(2) and s 109(3)(a) of the MAC Act.

As to the second period of delay - 7 February 2015 to 9 May 2019

As to the plaintiff's relevant knowledge, belief and actions in the second period of delay, between 7 February 2015 and 9 May 2019, several salient points of significance arise.
First, it should be noted that by 7 February 2015, the plaintiff was already out of time for filing her claim. From 7 February 2015, she would have required the leave of the Court to proceed with her claim in any event.
Secondly, from 7 February 2015, the plaintiff's explanation relating to the first period of delay, as set out in the preceding paragraphs, continued to operate, at least until 5 April 2019, which was when the CARS Assessor delivered her certificate of assessment. During that period, she still had no understanding that she could not proceed with her claim without the leave of the Court, and she mistakenly believed that the fact that her claim was being considered by a CARS Assessor meant that it was in order. That position, which prevailed from when the limitation period expired on 6 February 2015 and continued until her husband, her first solicitor, ceased practise on 30 June 2017. That position then appeared to further continue whilst her matter was being handled by her second solicitor. That inference arises because her second solicitor took the plaintiff's claim to a CARS assessment and in that time took no steps towards seeking leave to obtain leave to commence proceedings out of time. In my view, the compelling inference is that the plaintiff continued to operate under her earlier identified mistaken belief that her claim was in order. That position only changed when she sought advice from her third and present solicitor on 1 May 2019, after the CARS determination on 5 April 2019. Until then, the plaintiff's claim was engaged within the labyrinth of the CARS processes. There was nothing the plaintiff could have either done or achieved to hasten the process, or minimise the fact of, or the effects of, delay in prosecuting her claim at that stage. From that time, her case was in effect becalmed into a static phase whilst she waited for the decision of the CARS Assessor, which was ultimately delivered on 5 April 2019.
Thirdly, the delay experienced between 6 April 2019 and 1 May 2019, a period of 26 days during which the plaintiff considered her position and then retained her third and present solicitor, seems to me to be immaterial. Until that time, there is no evidence that the plaintiff had any knowledge or belief that her claim could not proceed without the leave of the Court. It was not until after a post-CARS hearing conference had taken place, that she obtained an understanding that her claim had not been appropriately handled. By then, it was too late for her to have done anything to have made a difference to that position.
Fourthly, the delay experienced in the 26 days between 6 April 2019 and when the plaintiff retained her present solicitor on 1 May 2019, and the further delay from 1 May 2019 to 9 May 2019 when the summons was filed, is inconsequential especially given that there is no suggestion that the defendant has been materially prejudiced. From that time, her third solicitor, Mr Radburn, acted with due alacrity and filed the present summons 8 days after he was first consulted. He then embarked upon the necessarily consequential process of gathering evidence to support the present application.
In my view the plaintiff has provided a full explanation for that second identified period of delay: s 66(2) and s 109(3)(a) of the MAC Act.

As to the third period of delay - 10 May 2019 to 12 August 2019

In the third period of delay, between 10 May 2019 and the time of the commencement of the hearing of the present summons, no additional explanation is required. The conduct and the outcome of the matter continued to remain out of the plaintiff's hands. In that period, apart from assisting to prepare relevant evidence in support of her summons, a matter that was plainly within the remit of her present solicitor, there is nothing else she could reasonably have done to eliminate or limit this relatively short but inevitable period of further delay.
In my view the plaintiff has provided a full explanation for that third identified period of delay: s 66(2) and s 109(3)(a) of the MAC Act.

Summary as to whether the explanation is full

In my view, the plaintiff's explanation for the delay as contained in her affidavits, in her oral evidence, as supported by her husband's affidavit as her first solicitor, and the affidavit of her present solicitor, is a sufficiently full and understandable account to explain the delay she has incurred in commencing the proceedings. No additional relevant information could have been expected from her second solicitors as at the time those solicitors handled her claim, it became becalmed in the CARS process awaiting a decision. The plaintiff's account fully sets out all relevant matters concerning her conduct, knowledge, beliefs and actions in the periods of delay identified.

Whether the plaintiff's explanation is satisfactory

In my view, the plaintiff's full account is also a satisfactory account within the meaning of s 66(2) and s 109(3)(a) of the MAC Act in that a reasonable person in her position would have been justified in experiencing the same delay when confronted with the described circumstances that affected the plaintiff throughout the identified periods of the delay she has in fact encountered.

Conclusion concerning plaintiff's explanation for delay

I find that the plaintiff's explanation for the delay in instituting proceedings in relation to her accident on 6 February 2012 is both full and satisfactory: s 66(2) and s 109(3)(a) of the MAC Act.

Disposition

I find that the plaintiff has satisfied all of the requirements for the grant of the leave to proceed that she seeks by this summons.

Costs

As the plaintiff has succeeded in obtaining the orders that she seeks in her summons, she should consequently have an order that the defendant should pay her costs of the summons on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff is granted leave to file a statement of claim to institute and to maintain proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 6 February 2012; 2. The proposed statement of claim the subject of Order (1) above is to be filed within 14 days of today's date; 3. The defendant is to pay the plaintiff's costs of the plaintiff's summons filed on 9 May 2019, on the ordinary basis unless otherwise ordered; 4. The exhibits may be returned; 5. Liberty to apply on 7 days' notice if further or other orders are required.

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: 15 August 2019

At a glance

Court

Decision date

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)