Hunter v Roberts

A "full and satisfactory" explanation

1. The requirements for such an explanation are sufficiently summarised in my judgment (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433: [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.

Factual background

1. The applicant was 21 years old at the time of the accident and is a trained hairdresser, having left school at the age of seventeen with her School Certificate. At that time she lived in Parkes with her sister and a friend. She was discharged from hospital following the accident on 1 April 2013 and between then and May 2014 received treatment as an outpatient on a number of occasions. The injuries she sustained included a subgaleal haematoma, fractured nose, fractured orbit around her right eye, pelvic fracture, fractures to the left and right wrists and lacerations to the face and scalp. In January 2014 she continued to be unfit for work.
2. Around 30 June 2013 she discussed with an uncle the possibility of making a motor vehicle claim in respect of her injuries. In late 2013 she decided to take further steps to inquire about the claim process, understanding that she might have a right to make a claim but not knowing how to do so. In November or December 2013 her mother phoned the NRMA and as a result the applicant was sent a claim form to complete. In order to do so she had to obtain a medical certificate from her treating doctor. The completed claim form was dated 3 February 2014 and submitted a week later. On 13 February 2014 she spoke to an officer of the NRMA via telephone, and was advised that her claim would be rejected. There is no suggestion in the evidence that the NRMA had at any earlier point in time told her or her mother of there being any time limitations in which to lodge notice of her claim.
3. The applicant then approached a Legal Aid office and was referred to Gerard Malouf & Partners, whom she first consulted on 26 February 2014. On the same day she received a text message from a Mr Harris informing her that the respondent had admitted to him that he was driving the vehicle at the time of the accident. The second claim form was then completed and lodged on 3 March 2014. The NRMA rejected that claim by letter dated 18 March 2014, and at the same time requested that the applicant provide a "full and satisfactory explanation for the delay in making the claim" which "should be in the form of a signed statement".
4. The sequence of events after March 2014 during which the applicant provided further information to the NRMA is somewhat tortuous. On 21 March 2014 those solicitors advised the NRMA that the applicant was "currently attending to preparing a statutory declaration". However such a declaration was not provided by the applicant until 4 March 2016. In the intervening period the applicant in April 2014 provided a statement about the incident to an investigator retained by the NRMA; and in December 2015 the applicant's mother provided a statutory declaration which the NRMA subsequently rejected as being "neither full nor satisfactory".
5. Its reasons for doing so, advised by letter dated 4 February 2016, included that there was no explanation as to what caused the applicant to attend the solicitors to obtain advice, as to the content of the advice provided, or as to the delay in the action taken by those solicitors. These matters were substantially addressed by the affidavits of the applicant's solicitor, Mr Bechara sworn 4 May 2017 and 5 May 2017, to which were attached the communications between the law firm and applicant, and the correspondence between that firm and the NRMA.
6. In cross-examination the applicant was questioned about the period from June 2013 to February 2014 and why she had not pursued the making of a claim more promptly, explaining in response: … when you're sitting at home trying to recover with - like you've had your arms broken, everything just jumbles together and I didn't think to push a claim. I didn't know that there was a limitation period. I just was trying to get on with my life.
7. Later in answer to a question directed to the time she had taken to give an explanation for that delay, she stated: I didn't know that there was another timeframe from when I had to document everything, like I didn't know that I - I thought that that's what a solicitor was for, like I thought he helped to get all the information together. I didn't know that I had to try and like put it all together myself. I have never done this before so I didn't know.

The decision of the primary judge

1. Having recited much of this history, the primary judge summarised the applicant's explanation for her delay in making the claim: [80]… (a) Upon her discharge home from hospital the plaintiff was unable to do anything. She was attending frequent medical appointments, with the assistance of her mother. (b) She was not well physically or psychologically. Relevantly she suffered from impairment to her concentration. Her claim was delayed by reason of her ongoing injuries and disabilities, including her physical injuries, the symptoms arising from her head injury and by reason of psychological symptoms. The accident has made it difficult for her to proceed with her life and everyday activities have become a struggle. She becomes overwhelmed by stressful situations. She loses her train of thought and has become forgetful. (c) She said did not know the seriousness of the accident and the ongoing treatment that her injuries would require and that would affect her later in life. Making a claim was "the last thing on [her] mind".
2. Her Honour accepted that up until 30 June 2013 the applicant had provided a full and satisfactory explanation for not by then having made that claim, observing that she "was struggling physically and emotionally and did not know her rights to claim": Judgment [81]. Her Honour then focussed on the period from 30 June 2013 until February 2014. It is convenient to set out her consideration of what occurred in this period: [82] However, on 30 June 2013, the plaintiff considered the possibility of making a claim. A family member told her that he didn't know why she was not claiming. She accepted that she was aware from the time that there was a possibility that she could make a claim. She said that she was very nervous about the process and provided a number of reasons including that: (a) She could not be precise about whether or not she or the defendant was driving; (b) During the period she was also subjected to ongoing harassment by the defendant; (c) She was suffering from her injuries; (d) She had ongoing medical appointments; (e) She was financially disadvantaged and could not afford legal costs; (f) She had lost many aspects of her life; and (g) She was attending Centrelink appointments and looking for employment. [83] There is no evidence that she had any real change in situation in the six months between June 2013 and the time when she finally completed the first claim form. [84] Whilst she was concerned that she could not be precise about who was driving, that remains the case and did not prevent her filing the claim forms. [85] The on-going harassment from the defendant does not appear to have included threats not to bring a case and did not appear to be causative of her reason not to make a claim. Indeed, on a matter where she bears the onus, she was unable to say whether this harassment was before or after June 2013, or even before or after she saw her solicitor. Accordingly, I don't regard it as a particularly relevant matter, however, I have taken it into account in her favour in considering whether she has made a full and satisfactory explanation for the delay. [86] Whilst she continued to suffer injuries, including some level of psychological impairment, she was able in that period to attend TAFE, to attend medical and Centrelink appointments and there is no suggestion that she was not capable of filing a claim by reason of her injuries. [87] The plaintiff's concerns about legal costs would have been answered by reasonable enquiry, which she has now done but which she did not undertake in that six month period. And indeed she filed the first claim form without legal assistance. She said, and I accept that she was "focusing on recovery" and I accept that she had significant injuries that required her attention. She said, and I accept, that she "didn't think to push a claim". There is certainly a suggestion that, perhaps understandably in her mind, she prioritised her health above claim for legal rights. However, I do not regard that as reasonable explanation for her delay and there is no reason to suggest that the plaintiff would have jeopardised her health in any way by making a claim. The fact that she prioritized her recovery over taking any steps to enquire about a claims process, in my view, is not of itself a full and satisfactory explanation for her delay. [88] She says, and I accept, that she didn't know there was a limitation period. However, it is also the case that she took no steps to make any enquiries in regard to the way in which a claim ought be processed. [89] By the end of 2013, she decided to take "some steps to enquire about the claim process" as her injuries were not improving and she was worried about her employment prospects and was losing money. At that time she had no awareness of the claims process, but importantly was aware of the possibility of a right to claim and had been so aware for about six months and during that time she took no reasonable steps to find out what the process was. [90] In November or December 2013, the plaintiff's mother phoned NRMA and as a result the plaintiff was sent the first claim form to complete. She completed that form in February 2014. The front page of the first claim form states "The claim form must be sent to the CTP insurer as soon as possible but no later than six months from the date of the accident. You can still make a claim more than six months after the accident. However, your claim could be rejected if the insurer receives your claim more than six months after the accident and you cannot give a satisfactory reason for the delay". The form also provides a website and a claims advisory service if more information is needed. The plaintiff did not take up that opportunity. The form also provides information regarding the plaintiffs rights if her claim is denied. Accordingly, had she requested a claim form earlier she would have been made aware of the relevant time limits.
3. Having then traversed the events of February and March 2014 - including the applicant's attending upon Legal Aid who referred her to compensation lawyers, first contacting Gerard Malouf & Partners, and then receiving advice as to the need to provide a full and satisfactory explanation - the primary judge concluded: [96] Whatever the [applicant's] solicitors thought as at February 2014, by 18 March 2014, they were under no misapprehension that a statutory declaration from the plaintiff was required, providing a full and satisfactory explanation of the delay, and that the explanations given up to that time, regarding the plaintiff's injuries and ongoing medical treatment, were not going to be accepted at face value by the NRMA. The fact that it was not provided until 1 March 2016, where further requests were made for it, has not been fully or satisfactorily explained. The relevance of that delay in my mind is to reinforce the evidence that the attitude the plaintiff had prior to completing her claim was that consideration of her injuries and ongoing medical treatment was always more important to her than asserting her legal rights, a matter which I have held to be not a full and satisfactory explanation for the delay.

Disposition of the application for leave, and the appeal

1. The proposed grounds of appeal challenge the primary judge's conclusion on two bases. First, it is contended that, having correctly identified at Judgment [13] and [14] the requirements of a "full and satisfactory" explanation, her Honour did not apply that test (proposed grounds 3 and 8). Secondly, it is contended that in considering whether the applicant's explanation for the delay in making the claim was satisfactory, her Honour made material errors of fact (proposed grounds 2, 5, 6 and 7).
2. It is common ground that if errors of either kind are established, this Court should deal with the question whether the applicant has a satisfactory explanation, there being no findings as to her credibility which might prevent it from doing so.
3. In my view the principal challenge to her Honour's conclusion should be upheld. The relevant test directs attention to whether a hypothetical reasonable person "in the [applicant's] position" would have experienced the same delay. Here that delay was a period of 4 months and 14 days from 28 September 2013. As Hodgson JA (dissenting in the result) emphasised in Russo v Aiello [2001] NSWCA 306 at [17] there is "a substantial spectrum of reasonableness" and accordingly "it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay". The test does not require a claimant to establish that all "reasonable" persons within that spectrum would have experienced the same delay.
4. In the analysis at Judgment [90] the primary judge did not consider, by reference to an objective standard of reasonableness, whether given the findings she had made regarding the applicant's position, the delay which occurred was justifiable. That exercise necessarily requires close attention to the knowledge and circumstances of the claimant. As in Karambelas v Zaknic (No 2) at [34], here those circumstances included that the applicant "did not understand that she had to lodge the claim form within the six months, or as soon as possible thereafter, to secure her entitlement to claim at any time any damages whatsoever in relation to the motor accident". That meant, as was there observed, that "she did not appreciate that by not completing and returning the form she was putting at significant risk her right ever to make a claim".
5. Looking at the position in the second half of 2013, the primary judge considered the applicant should have taken "reasonable steps to find out what the [claim] process was": cf. Judgment [89]. Her Honour did not regard as a reasonable explanation for the delay that, as she observed at Judgment [87] and [96], during that period the applicant had "prioritised her recovery over taking any steps to enquire about a claims process". However the question at that point was whether a reasonable person, with the applicant's age and life experience, who did not appreciate that by not formally pursuing her claim she was putting at risk her right ever to make such a claim, would have taken steps at that time to understand what the claims process was. The applicant's conduct in making enquiries with the NRMA in late 2013 did not reflect any earlier understanding as to the significance of making a claim, she having pursued those enquiries because her injuries were not improving, and she was unable to work and concerned about her future employment prospects.
6. Turning to the argument that there were material errors of fact, it is conceded that the primary judge erred in finding that in the six months or so after June 2013 the applicant was attending TAFE: see Judgment [86], [92]. That finding was made in support of her Honour's conclusion that the applicant acted unreasonably in not making enquiries about and pursuing her right to claim from June 2013, and particularly after her mother had obtained a copy of the claim form in November or December 2013. The primary judge reasoned that, notwithstanding that the applicant was struggling physically and emotionally, if she was capable of attending TAFE, she was also capable of making inquiries about her right to claim.
7. It is also conceded that her Honour's finding at Judgment [93] that the applicant had not read the front page of that claim form was not available. The primary judge reasoned that if she had read that page the applicant would have known of the requirement to make a claim within 6 months. However the applicant was not questioned about this subject and it was never put to her that had she been acting carefully and with regard to her interests she would have read that part of the form. Each of these findings was material to her Honour's conclusion that the applicant had not given a "full and satisfactory" explanation.
8. This makes it necessary for this Court on this appeal by way of rehearing to consider whether the requirements for a "full and satisfactory" explanation are satisfied. Accepting that the relevant explanation was not provided until the hearing in the District Court, the period in relation to which the applicant was required to give a full account of her conduct was from the date of the accident to the conclusion of that hearing. The respects in which the NRMA contended that the applicant's earlier explanations were deficient were identified by the primary judge at Judgment [69] and [75]. Those explanations were supplemented by the affidavit evidence filed in answer to the NRMA's application, as well as the applicant's evidence in cross-examination. Considering all of that evidence I am satisfied that the applicant has given a full account of her relevant conduct up to the date of providing her explanation for the delay in making her claim.
9. As to that explanation, I am satisfied that the period of delay of 4 months and 14 days was one that a reasonable person in the applicant's position would have been justified in experiencing. She was 21 or 22 years of age with minimal education. She had never been in an accident before and did not know what the claims process was. Whilst she was aware of the possibility of making some form of motor vehicle claim, she did not understand that she had to give notice of such a claim within 6 months of the accident to secure her entitlement to claim any damages at any time in the future. In the 10 months or so following the accident, she continued to suffer from her physical and psychological injuries. She had impaired concentration and psychological injuries, which resulted in her becoming overwhelmed by stressful situations, losing her train of thought and becoming forgetful. As the primary judge accepted, her goal, having lost her employment and livelihood, was to get her life back together, and to do so she was focussing on her recovery.
10. Finally, the respondent did not make any admission that he was driving the vehicle until late February 2014. In these circumstances a hypothetical reasonable person with the applicant's education, life experience and injuries would have been justified in not taking immediate steps after June 2013 to make and pursue inquiries about her rights and any claim process. That is particularly so where such a person would not have appreciated that delay beyond a further period of three months would put at significant risk their right ever to make a claim.
11. In the result, the interests of justice require that the applicant be granted leave to appeal and, for the foregoing reasons, that appeal should be allowed.

Conclusion

1. For these reasons I propose the following orders: 1. Extend to 7 August 2018 the time under Uniform Civil Procedure Rules 2005 (NSW) r 51.9(1)(b) for the filing of a summons seeking leave to appeal. 2. Note the undertaking to the Court of the solicitor for the applicant that the firm Gerard Malouf & Partners will not make any claim for or recover any costs of or incidental to the making of that application for an extension of time. 3. Grant the applicant leave to appeal from the orders of the District Court made on 23 March 2018. 4. Direct that the notice of appeal be filed within 7 days. 5. Allow the appeal. 6. Set aside orders 1, 2 and 3 made by the District Court on 23 March 2018. 7. Order that the respondent's notice of motion filed in the District Court on 28 June 2016 be dismissed. 8. Order that the respondent pay the applicant's costs of that motion. 9. Order that the respondent pay the applicant's costs of the appeal.
2. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Meagher JA, with which I agree.
3. To succeed before the primary judge, the appellant had to have provided a full account of her relevant conduct (including her actions, knowledge and belief) from the date of the accident until her explanation was ultimately furnished, and her explanation had to be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay" (that being in respect of the period from 28 September 2013 when the six-month period for making a claim expired, until 10 February 2014 when she first made a claim). [1] It was not controversial that, by the time of the hearing at first instance, she had provided a "full" explanation; the issue was whether it was a "satisfactory" one.
4. While all the factors to which Meagher JA refers - including in particular that the appellant was not aware of the six-month period for making a claim, and was giving priority to her recovery - are relevant and support the conclusion that a reasonable person in her position "would have been justified in experiencing the same delay", compliance with that requirement is sufficiently demonstrated by the following circumstances, which in my judgment are decisive: 1. Until 26 February 2014, the appellant did not know that the respondent was the driver of the motor vehicle; such material as was available until then tended to favour the view that the appellant was the driver, and if she was, she had no claim. Although she had in fact made a claim before then, on 10 February 2014, that claim form, dated 3 February 2014 identified the respondent as a witness and the "other victim", and stated "I am not entirely sure who was driving". 2. On 26 February 2014, she received a text message from an associate who reported to her that the respondent had admitted to having been the driver. Only then was the appellant in a position to allege that the respondent was the driver. Until then, she did not know that she had a cause of action in respect of which she could make a claim.
5. The primary judge said: 83 There is no evidence that she had any real change in situation in the six months between June 2013 and the time when she finally completed the first claim form. 84 Whilst she was concerned that she could not be precise about who was driving, that remains the case and did not prevent her filing the claim forms.
6. However, whether absence of such knowledge did not prevent her filing her claim form when she did lodge it is not the question. The appellant did not have to explain why she made a claim when she did, but why it was justifiable for some reasonable persons in her position not to have done so sooner. [2] Had she not made her initial claim, as she did, on 10 February 2014, but claimed for the first time on 3 March 2014 (when her second claim was lodged), immediately after receiving the information that the respondent was the driver, her explanation for not claiming earlier would have been irresistible. That she acted sooner, without knowing who the driver was, does not mean that some reasonable persons in her position would not have been justified in waiting even longer, until she had a reason to believe that she was not the driver.
7. I agree with the orders proposed by Meagher JA.
8. SIMPSON AJA: I agree with Meagher JA.

Endnotes

1. Motor Accidents Compensation Act 1999 (NSW), s 66(2), s 73; Brierley v Ellis [2014] NSWCA 230 at [7] (Meagher JA; with whom Basten JA and Gleeson JA agreed); Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]-[17] (Meagher JA, with whom Basten JA and Simpson J agreed).
2. Cf Russo v Aiello [2001] NSWCA 306 at [17] (per Hodgson JA).

Amendments 22 May 2019 - Omit word "not" from penultimate sentence in [32] 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: 22 May 2019