The plaintiff is not entitled to commence proceedings unless granted leave (which can be granted nunc pro tunc) by the court pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) which 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."
The definition of "full and satisfactory explanation" is set out in s 66(2) Motor Accidents Compensation Act 1999 (NSW):
"(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."
As the parties agree that the plaintiff would be entitled to more than 25% of the maximum that may be awarded for non-economic loss, the sole issue is whether the plaintiff has a full and satisfactory explanation for the delay in commencing these proceedings.
[2]
The relevant period of time
The defendant restricts period for explanation to the period from 14 November 2008 (the date of discharge from hospital) to the commencement of these proceedings (13 December 2016). The defendant identifies the six periods of time during this 8-year period:
1. 14 November 2008 to 21 June 2010 (date of discharge from hospital to the date of the NRMA claim form);
2. Shortly after 21 June 2010 (when the personal injury claim form was submitted to the NRMA) to October 2011 (when the plaintiff's statutory declaration to the NRMA explaining delay and lodgement of the claim form was provided);
3. October 2011 to January 2014 (a period of two years and three months);
4. January to October 2014;
5. December 2014 to 15 April 2015 (when proceedings were commenced to set aside the AAMI settlement agreement);
6. April 2015 to December 2016 (in circumstances where the CARS exemption was granted on 27 November 2015).
The defendant accepts that the issue of the setting aside of the deed with AAMI on behalf of the Nominal Defendant was a complication to which some delay can be attributed, but noted that the plaintiff could have filed a statement of claim at any time after the exemption of the proceedings (27 November 2015). These proceedings were not commenced until 13 December 2016, and then only after warnings of the imminent expiry of the s 110(3) period (on 19 December 2016).
The plaintiff's explanation for the delay was of the "sins of the solicitor" variety (Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953), namely that the solicitor the plaintiff sought advice from had been less than attentive, and additionally had taken misguided steps on the plaintiff's behalf, such as resolving the proceedings with AAMI by way of settlement, failing to make better enquiries of the police and the like.
I do not accept this submission. The plaintiff's solicitors were in a difficult position, in that the plaintiff provided them with inconsistent instructions as to who was responsible for the motor vehicle accident. They were hampered by the obviously contradictory statements made to the police by the plaintiff at the time. The correspondence between the solicitors for the plaintiff and the police and insurance companies is prolific and indicates a solicitor doing his best to assist a client whose instructions must have been confusing and inconsistent. The plaintiff's changing story, not the neglect of the solicitor, is the explanation for much of the delay, and the explanations for delay must be regarded as unsatisfactory for this reason.
[3]
The relevant principles of law
Both parties referred me to Walker v Howard [2009] NSWCA 408 where the Court of Appeal explains the proper construction of s 109 (at [45]-[49]) and the correct way to determine a "reasonable person in the position of the claimant" (at [63]-[66]).
The plaintiff had suffered a severe injury to his leg but was otherwise capable of giving instructions. The plaintiff was personally unable to explain any of the above periods of delay, either in the affidavit he filed in relation to the s 109 application or in the course of his evidence.
The result is that neither a full nor satisfactory explanation is given, not only for each of the periods of delay outlined above, but for the whole of the circumstances in which the cumulative periods of delay arise from the completely different explanations for the circumstances of the accident to all the contemporaneous records.
I note the observations of the Court of Appeal in Walker v Howard at [95] as to the difficulties in reconciling authorities in cases where the result turns largely on the facts, but this is a rare case where there really is no explanation as to why it took the plaintiff this extraordinarily long period of time to bring proceedings against the defendant when the defendant's identity was known to him on or shortly after the day of the accident to the extent to which he had a conversation with him about the accident.
While only presumptive prejudice is claimed, the difficulties of any person giving evidence a decade later are self-evident. It was apparent from the defendant's evidence that he did in fact have difficulties remembering what occurred by reason of this long period of time. It is also evidence, from the plaintiff's solicitor's correspondence with the police, that the police faced similar difficulties when asked to make further investigations some years after the accident.
[4]
Conclusions concerning the s 109 application
The plaintiff has failed to provide either a full or satisfactory explanation for each of the periods of time identified by the defendant.
In the event that I have erred in this regard and my observations as to quantum would be of assistance, I set these out.
[5]
Quantum
The particulars of injury pleaded in the Amended Statement of Claim are as follows:
1. An injury to the left leg involving compound fracture of the left femur and compound comminuted fracture of left tibia and fibula;
2. Complications in injury to left leg healing as a result of infections;
3. Abrasions;
4. Shock;
5. Depression.
The particulars of disabilities pleaded are as follows:
1. Requirement to undergo operative treatment, involving insertion of metal fixtures above and below the knee;
2. Requirement to undergo operative treatment involving skin grafting and reconstruction;
3. Plaintiff has a permanent limp;
4. Requirement to use crutches for a period of time (since resolved);
5. Difficulty walking for any but short distances;
6. Difficulty standing for any but short periods of time;
7. Difficulty using stairs;
8. Difficulty dressing, in particular putting on shoes and socks;
9. Severely restricted movement of left knee;
10. Loss of freedom of movement generally;
11. Requirement to use leg support whilst sitting;
12. Pain and restricted movement of left leg;
13. Requirement to undergo painful physiotherapy;
14. Requirement to ingest pain relieving medication;
15. Interference with sleep;
16. Continual sensation in left knee of tightness and restrictions.
The plaintiff's schedule of damages is as follows:
Non-economic loss $300,000
Past wage loss $125,236
Past and future superannuation Nil
Future economic loss $25,000
Past out of pocket expenses $3,207.05
Future out of pocket expenses $34,770
Past domestic assistance $25,000
Future domestic assistance $100,000
[6]
The defendant's schedule of damages is as follows:
Non-economic loss $200,000
Past economic loss $15,000
Future economic loss Nil
Loss of superannuation Nil
Past out of pocket expenses $3,207.05
Future out of pocket expenses $10,000
Past domestic assistance Nil
Future domestic assistance Nil
[7]
The medical evidence tendered by the plaintiff is largely unchallenged. He has suffered a significant injury. I would accept the figure for non-economic loss proffered by the plaintiff, namely $300,000.
However, the evidence of the plaintiff's economic loss is at best scanty. He appears to have participated in country auctions on a cash basis and to have bought and sold second hand goods in circumstances where he had an income at or below the tax threshold. He also did some odd jobs and contract work, but there is scant evidence in terms of financial records. I would accept the defendant's estimate of past economic loss at $15,000 and, to err on the side of caution, would award a similar sum for future economic loss, having regard to the plaintiff's age and limited pre-accident earning capacity.
Past out of pocket expenses are noted at $3,207.05. I would accept the plaintiff's estimate of future out of pocket expenses.
I would not be prepared to award past or future domestic assistance, having regard to the reservations expressed in the occupational therapist's report. Ms Piebenga's careful analysis (Exhibit 1, pp 15-65) makes it clear that the plaintiff's claim falls below the threshold. I prefer her report to that of Ms Grinter (Exhibit A). I note the plaintiff's wife was not called.
[8]
Orders
1. Judgment for the defendant.
2. Plaintiff pay defendant's costs.
3. Liberty to apply in relation to costs.
4. Exhibits retained for 28 days.
[9]
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: 12 June 2019
When the plaintiff was admitted to Orange Base Hospital, he described the accident as follows:
"MBA at Mudgee - travelling home midday at high speed - 90 kph hit gravel + crashed Triumph trying to avoid pole [arrow] hit the deck. Denies LOC."
(12 October 2008; Dr Cunningham's notes).
Other notes, in other handwriting, say "front wheel slid out on gravel, 90 kph."
The description given by the plaintiff of a motor vehicle accident at high speed (90km/hr) where he was "trying to avoid pole" was the subject of further enquiry by a Ms Charnock on 28 October 2008. In the course of a review of the plaintiff's file, she interviewed him and noted:
"Patient represents as very articulate and in good spirits. Patient described accident and from description does not meet criteria for financial support from RTA for medical treat [sic] due to accident. IPTAAS form placed in file for completion by team and to be transferred to Mudgee with patient."
The Court of Appeal has repeatedly warned trial judges that descriptions as to the circumstances of accidents, injuries and the like, written by busy medical professionals in the course of urgent treatment must be treated with caution: Hill v Richards [2011] NSWCA 291 at [23]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]. That is in part because their focus is on treatment of the plaintiff rather than the cause of the accident.
However, there are exceptions to that rule, particularly where the specific purpose of the note taking relates to the circumstances of the accident for some patient-related purpose.
In the present case, the notes prepared by the social worker demonstrate that she was asking him about how the accident happened in order to determine whether he had some form of compensation entitlement, presumably because this could be relevant to some aspect of liability for payment of expenses incurred in the hospital system. In other words, the social worker was directing her enquiries in the course of the accident with a degree of precision and was carefully noting down the plaintiff's answers. As such, the observations that she made and the information she wrote down should not be treated with the caution that may be exercised where there are other factors, such as urgent treatment or medical observations.