Hawchar v Marshall

The Law

1. Section 109 of the Act provides: "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."
2. The monetary threshold fixed by s 109(3)(b) is agreed to be $130,250.
3. The phrase "full and satisfactory explanation" in s 109(3)(a) refers back to a definition of that phrase contained in s 66(2) of the Act as follows: "(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."
4. The meaning of the phrase "a full and satisfactory explanation" has been the subject of many decisions of the Court of Appeal. The earlier decisions related to the cognate section in the Motor Accidents Act 1988 (NSW), which was in similar terms.
5. In Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 the Court of Appeal sat five judges to consider, inter alia, the meaning of the definition of "a full and satisfactory explanation" in s 66(2) of the Act.
6. The case concerned a claimant who suffered serious brain damage in an accident and who was unable to look after his affairs. It fell to his family members to pursue his rights. The claimant failed to commence legal proceedings against the defendant within three years of the accident and thus needed leave under s 109 of the Act to commence proceedings.
7. I can do no better than set out the distillation of the judgment contained in the headnote of the case. In this regard, the headnote attached to the Austlii version of the case is more comprehensive than the headnote in the authorised report. References below in square brackets are to paragraphs in the decision.
8. The explanation of "the conduct" required by the first sentence of s 66(2) is an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimant's behalf, if their conduct is relevant to the explanation for the delay: [53], [106], [133].
9. The explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, but this does not broaden the meaning of "claimant" in the first sentence of s 66(2) beyond its defined meaning, to include any person acting or purporting to act on his or her behalf: [55].
10. The meaning of "full" in s 66(2) is to be understood in the context of the purpose of the provision which is to enable the court to evaluate the reasons for the delay; therefore all relevant information to that end is required: [57].
11. The test contained in the second sentence of s 66(2) is an objective test of whether a reasonable person in the claimant's position would have been justified in experiencing the delay: [64], [108], [134].
12. Others without legal authority and responsibility are not part of the objectified reasonable person. Nevertheless they and their actions may form part of "the position" or circumstances of the claimant to be taken into account when considering if there was justification for experiencing the delay: [100], [150].
13. In Karambelas v Zaknic (No. 2) [2014] NSWCA 433 the Court of Appeal said the following in relation to whether an explanation is "full and satisfactory" within the meaning of the Act: "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."

The Plaintiff's Explanation

1. The plaintiff's account of his own conduct, including his actions, knowledge and beliefs, is contained in his affidavit sworn 13 July 2020 (PX 1). Mr Hawchar was born overseas in 1991 and came to Australia in 2012. He worked as a cement renderer. He was earning $1,500 gross per week. He was involved in a car accident on 1 February 2017 and initially did not think that he had been injured. The following day he felt pain in his neck, left arm and shoulder, lower back and left leg. He consulted a local general practitioner Dr Hanna. He was off work until 27 February 2017. He continued to see Dr Hanna who referred him for an MRI, CT scans and physiotherapy. In May 2019 Dr Hanna referred him to Dr Guirgis, a consultant orthopaedic surgeon.
2. Mr Hawchar said that he was unable to return to work as a cement renderer, which is heavy physical work. He has been able to do some casual lighter work earning an average of $280 gross per week. He said that he is losing at least $1,200 gross per week in income because he cannot work as a result of injuries sustained in the accident.
3. Mr Hawchar consulted Danawe Lawyers in May or June 2017. Mr Danawe told him that he was entitled to claim compensation for his injuries. A Personal Injury Claim Form was signed on 12 June 2017. Mr Danawe said that the matter would be finalised as soon as possible and that he knew people at the GIO which would make the claim easier.
4. Mr Hawchar said that after he heard nothing from Mr Danawe for some time he telephoned and was told that the matter was progressing and would not take too long. Mr Danawe never told Mr Hawchar anything about the need for a medical assessment and did not mention anything about there being a time limit to commence proceedings. Mr Hawchar was personally unaware of any such time limit.
5. Towards the end of 2018, Mr Danawe told Mr Hawchar that the insurer had advised that there was no accident, no injury and that any accident could not have caused the injury. Mr Hawchar told Mr Danawe that this was not correct. In early 2019 Mr Danawe advised Mr Hawchar to withdraw his claim but Mr Hawchar refused to do so.
6. Mr Hawchar then changed lawyers and in May 2019 went to State Law Group, his current solicitors. Mr Hawchar was told that there was a delay in getting Mr Danawe's file and that it was not obtained until July 2019.
7. In late July 2019 Mr Hawchar attended a conference with his new solicitors. He was advised that Danawe Lawyers had failed to arrange for him to see a medical specialist to assess his Whole Person Impairment. Mr Hawchar was advised by his new solicitors of the issues raised by the insurer and the risks involved in proceeding with the claim.
8. It was an agreed fact that in about July 2019 State Law Group asked Mr Hawchar for $2,000 so that a traffic engineering expert could be retained to provide a report. Mr Hawchar was unable to provide these funds.
9. In late October 2019 Mr Hawchar instructed State Law Group to continue with the claim.
10. In November 2019 State Law Group arranged for the plaintiff to see Dr Bodel, an orthopaedic specialist. Mr Hawchar attended the first available appointment which was 20 December 2019.
11. On 28 January 2020 Mr Hawchar attended a conference with Mr Andrew Le from State Law Group. Mr Le advised him that he needed to commence court proceedings no later than 31 January 2020. He signed an authority to commence court proceedings.
12. On 31 January 2020 Mr Hawchar attended a conference with counsel and Mr Yousif from State Law Group.
13. Mr Hawchar said that "Due to COVID-19, there has not been much correspondence between myself and State Law Group from approximately March 2020 to date".
14. The plaintiff's present solicitor Mr Jason Chai provided two affidavits dated 13 July 2020 (PX 2) and 10 November 2020 (PX 3).
15. Mr Chai said that the plaintiff first instructed State Law Group in early May 2019. State Law Group wrote to Danawe Lawyers requesting the file. It was not provided until 8 July 2019. Mr Chai gave no evidence concerning anything found in the file. In particular no evidence was provided in relation to advice given to the plaintiff.
16. A conference was held with the plaintiff on 31 July 2020 when the plaintiff was informed that the former solicitors had not arranged an appointment with a medical specialist to assess Whole Person Impairment. Mr Hawchar was advised in that conference of the status of his claim, the issues raised by the insurer and the risks involved. The solicitors gave the plaintiff time to think about the advice given in conference and sought his further instructions.
17. In late October 2019 the plaintiff provided instructions to continue with this claim.
18. In November 2019 the plaintiff's solicitors booked an appointment with Dr Bodel, orthopaedic surgeon, for 20 December 2019. A report was obtained from Dr Bodel on 15 January 2020.
19. From May 2019 until January 2020, the plaintiff's claim was managed by Ms Joanne Huynh, solicitor. Ms Huynh went on maternity leave in January 2020 and the file was then handed over to Mr Chai in late January 2020. There was no affidavit from Ms Huynh.
20. Upon taking over the file Mr Chai realised that while the insurer had denied liability, no-one had obtained a Certificate of Exemption under s 92(1)(b) of the Act, which was necessary before the plaintiff could commence proceedings.
21. Mr Chai lodged a CARS Application for Exemption on 30 January 2020 and requested the urgent processing of his application. The insurer filed its Reply to the Application for Exemption on 19 February 2020 and indicated that it did not oppose the plaintiff's application. A Certificate of Exemption was issued on 1 April 2020.
22. After that certificate was issued, Mr Chai says that he took steps to seek leave for the plaintiff to commence proceedings out of time. Mr Chai said that "there has been a delay due to difficulties obtaining further instructions and due to COVID-19 affecting our firm's operations".
23. In his second affidavit Mr Chai clarified which solicitor was handling the claim within the firm. He said that he had the day to day carriage of the matter up until 9 November 2020 and that on 10 November 2020 the file was handed back to Ms Huynh. While Mr Chai still had carriage of the matter, he served s 85A particulars on 31 August 2020.
24. Thus it seems that Ms Huynh had the conduct of the file between early May 2019 when the plaintiff first instructed State Law Group and January 2020 when she left on maternity leave. Mr Chai had conduct of the file from January 2020 until 9 November 2020. Ms Huynh then took over the conduct of the file again on 10 November 2020.

Evidence for the Defendant

1. The defendant tendered two affidavits by Ms McCullum, solicitor. The first was dated 7 August 2020 (DX 1) and the second was dated 19 October 2020 (DX 2).
2. Ms McCullum set out the steps taken by the insurer to deal with the claim. Included in her material was a report of Dr Griffiths dated 18 February 2019. Dr Griffiths is a biomedical and mechanical engineer. His report concludes that Mr Hawchar "could not have received the alleged injury in this incident". The opinion of Dr Griffiths is based upon facts assumed by him which are set out in his expert report.
3. The defendant also commissioned a report by Mr Glen Urquhart dated 5 October 2020. Mr Urquhart is a traffic engineer. He came to the conclusion that it was more probable that the incident occurred as alleged by the defendant, rather than as alleged by the driver of the vehicle in which the plaintiff was a passenger, although that version "cannot be excluded outright". He also expressed the opinion that the forces generated by the accident were not sufficient "to cause the passenger severe injuries".
4. Those two reports are relevant to the requirement for the plaintiff to establish that the total damages of all kinds likely to be awarded to him, if the claim succeeds, are above the monetary threshold set out in s 109(3)(b) of the Act.

Submissions for the Defendant

1. Counsel for the defendant submitted as follows: 1. The explanation was not full. 2. The explanation was not satisfactory. 3. The plaintiff did not satisfy the monetary threshold.
2. Counsel for the defendant pointed out that there was no evidence from the solicitor at Danawe Lawyers who had acted for the plaintiff between May 2017 and May 2019. Nor was there any evidence from the plaintiff's present solicitors about what was, or was absent from, the first solicitor's file.
3. Counsel for the defendant submitted that there was no explanation in the affidavit evidence of the plaintiff's actions, knowledge or belief from June 2017 to early 2018 when his first solicitor told him that the insurer denied the accident and denied injury. Further, the plaintiff was advised by his first solicitor in early 2019 to withdraw his claim, but he did not go to State Law Group until May 2019. There was no explanation for that four month period.
4. Counsel for the defendant pointed out that while the plaintiff swore that Danawe Lawyers gave him no advice about any limitation period, the plaintiff was silent as to whether he had been informed about that limitation period by State Law Group. It was submitted that the court should infer that the plaintiff was informed in May 2019 of the limitation period.
5. The defendant pointed to the conference held in late July 2019 with the new solicitors but submitted that there was no explanation why it took until late October for the plaintiff to give instructions to continue with the claim. It was submitted that the solicitor at State Law Group handling the matter must have been aware that time was running out and there was no explanation as to what steps were taken to obtain instructions from the plaintiff during that period. Counsel submitted that it should be inferred that both the plaintiff and his new solicitor were content to let time run.
6. Mr Chai said that he had not been aware that a Certificate of Exemption had not been issued, but he only took over the file in late January 2020. There was no evidence from Ms Huynh about her knowledge, or about why she did not make an exemption application much earlier.
7. Counsel for the defendant submitted that not only had the plaintiff failed to provide a full explanation, but that his limited explanation was not satisfactory in that a reasonable person in the position of the plaintiff would not have experienced the delay or have been justified in such delay.
8. On the monetary threshold, it was submitted that the evidence of Dr Griffiths and Mr Urquhart, as well as the evidence of Dr Keller, suggest that there was no injury suffered in the accident and therefore the plaintiff would not exceed the monetary threshold.

Submissions for the Plaintiff

1. Counsel for the plaintiff submitted that the plaintiff was a person with limited English who had only been in Australia a relatively short time. He was a manual worker and was not aware of the legal system. The plaintiff had left the matter in the hands of his first solicitors and kept ringing that solicitor to no avail. The plaintiff was not told of the time limit by that first solicitor, who had the file for two years.
2. Counsel for the plaintiff submitted that it was not until July 2019 when State Law Group obtained the file from the first solicitor. There was a gap between July and November 2019, during which the plaintiff was asked to come up with $2,000 to fund an expert report, but he could not provide those funds. In November 2019 an appointment was arranged with Dr Bodel but the first available date was 20 December 2019. When the report of Dr Bodel was received in mid-January 2020 it diagnosed injury caused by the accident and found that there was no capacity to work as a cement renderer.
3. Counsel submitted that the actions, knowledge and belief of the plaintiff had been set out and that a reasonable person in the position of the plaintiff (being a new migrant and a labourer) would have experienced the same delay.

Consideration: Whether the Plaintiff has a Full Explanation for the Delay

1. My conclusion is that the plaintiff does not have a full explanation for the delay. Such explanation must cover the conduct of the solicitors acting on behalf of the plaintiff. There is no evidence from Danawe Lawyers, who acted for the plaintiff for two years. Nor is there any evidence of what was discovered upon obtaining their file in July 2019. On applications such as this, a full explanation requires evidence concerning any advice given and any instructions given which bear upon the question of delay. Nor did the plaintiff give any evidence about the long periods in those first two years when nothing happened.
2. Counsel for the plaintiff submitted that the first solicitor "did nothing". That may or may not have been the case, but there is no evidence to support the submission.
3. There is no evidence from Ms Huynh, who had the carriage of the file for the plaintiff's present solicitors between July 2019 and January 2020, when Mr Chai took over. There is no evidence whether she gave advice to the plaintiff about the three year limitation period. Nor is there any evidence from the plaintiff as to whether he was advised about the three year limitation period after his current solicitors took over. There is no explanation as to why Ms Huynh did not swear an affidavit setting out what she did for the plaintiff, and what advice she gave to the plaintiff, in the six months after she received the file from the first solicitors. As the defendant submitted, an available inference is that both the plaintiff and his present solicitors were simply content to let the limitation period expire.
4. While Mr Chai realised straight away when he took over the file that an Exemption Certificate had never been granted, there is no explanation as to why one was not obtained when Ms Huynh had carriage of the matter.
5. There are large gaps in the plaintiff's own explanation of his actions, knowledge and beliefs. The court does not know how many times he contacted Danawe Lawyers to get his claim moving. Nor does the court know why it took the plaintiff between July 2019 and October 2019 to make up his mind whether to pursue the claim with his second solicitors.
6. There was no explanation by Mr Chai as to the steps he took between obtaining the Exemption Certificate on 1 April 2020, and filing the Statement of Claim on 21 July 2020. The evidence discloses that Mr Chai already held a report from Dr Bodel which supported the plaintiff's case on injury and loss of earning capacity.
7. In short, it would not have been hard for the plaintiff to obtain evidence on the following matters: 1. The steps taken by the plaintiff from time to time to ascertain and pursue his rights. 2. The steps taken by the first solicitors, which could be discerned by a reading of the file. 3. The steps taken by Ms Huynh of the plaintiff's present solicitors between July 2019 and January 2020.
8. It may well have been that the plaintiff put himself in the hands of both sets of solicitors and had some confidence that they were pursuing his rights. However, due to the lack of evidence it is not possible to reach that conclusion.

Consideration: Satisfactory Explanation

1. Because of the gaps in the explanation, which mean that it is not "full", the plaintiff has not satisfied the court that a reasonable person in his position would have been justified in experiencing the same delay.
2. I find that the plaintiff has not satisfied the court that he has a satisfactory explanation for the delay

Consideration: Monetary Threshold

1. The reports of Dr Griffiths and Mr Urquhart depend very much upon proof of the factual assumptions which they make. So does the opinion of Dr Keller. Without a trial on the merits, it is not possible to ascertain whether those opinions will be accepted.
2. The plaintiff is a young man who worked in a heavy job. He has medical support from Dr Bodel to say that he is incapacitated for that work. He was earning a significant income as a cement renderer and he has lost the ability, on the plaintiff's present evidence at its highest, to earn that income at any time in the future.
3. I find that the plaintiff has satisfied the court that the total damages likely to be awarded if his claim succeeds are over the monetary threshold in s 109(3)(b) of the Act.

Conclusion and Orders

1. The plaintiff has failed to satisfy the court of the requirements of s 109(3)(a) of the Act.
2. The orders of the Court are: 1. Notice of Motion filed on 21 July 2020 is dismissed. 2. Order the plaintiff to pay the defendant's costs of the Motion.

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: 20 November 2020