The plaintiff, Adhel Kechuol, was a pedestrian injured by a motor vehicle on 1 September 2010. She was obliged under s 73 of the Motor Accidents Compensation Act 1999 to give notice of a claim within six months of the accident, but notice was given a little over one month late. Further, any action that she commenced was required by s 109 of the Motor Accidents Compensation Act 1999 to be commenced within three years of the accident or by 31 August 2013. These proceedings were commenced on 3 April 2014. The applications relate to these failures to give notice and to commence proceedings in time.
[2]
THE STATUTORY PROVISIONS
Ms Kechuol applied under s 109 for leave to commence proceedings and leave to file a statement of claim out of time. The defendant filed a notice of motion seeking that the statement of claim be dismissed under s 73(5) of the Motor Accidents Compensation Act 1999 for failing to comply with the six-month notice requirement and also for failure to comply with s 109. Both of these provisions raise the need for a full and satisfactory explanation for the delay. Section 73(7) provides that the Court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim within the six-month period, and s 109 precludes the Court from granting leave to commence proceedings unless, among other things, the claimant has provided a full and satisfactory explanation for the delay.
Section 66(2) of the Motor Accidents Compensation Act 1999 explains the meaning of a full and satisfactory explanation in the following terms:
"(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."
Thus, the explanation given by Ms Kechuol in respect of the delay in making a claim, and in respect of the delay in commencing proceedings, must in the first place give a full account of her actions, knowledge and belief from the date of the accident until the date of providing the explanation relevant to the delay in making a claim (under s 73) or the delay in commencing proceedings within three years (under s 109).
Secondly, Ms Kechuol's explanation is not satisfactory unless a reasonable person in her position would have been justified in experiencing the same delay.
[3]
THE PLAINTIFF'S CIRCUMSTANCES
The position of Ms Kechuol is a relevant matter in assessing whether these requirements were satisfied. Ms Kechuol is an unemployed refugee from Sudan. In Sudan she had the equivalent of four years of primary school education. She speaks the African language of Dinka and has no mastery of English.
After the accident on 1 September 2010, Ms Kechuol received in January 2011 some correspondence from Brydens Law Office. Presumably because of her unfamiliarity with English, she asked her son to contact Brydens for an explanation of the letter and documents. She described their response as, "[u]nhelpful," which caused her to seek legal assistance from another firm, Grays Legal, in early February 2011, still well within the six-month period.
Ms Kechuol was advised by Grays Legal to obtain a medical certificate on 18 February 2011. She obtained the certificate and provided it to her solicitor. She says that at no time was she advised that her claim needed to be commenced within six months. She returned to Grays Legal in mid‑March 2011, some two weeks after the six-month period had expired, and with the assistance of a solicitor she completed a Motor Accident Personal Injury Claim Form. That form was then submitted. She says the next contact she had was with the law firm on 3 May 2011 where she was asked to sign a document which she has subsequently discovered to be a statutory declaration seeking to provide an explanation for the late submission of her claim form.
Ms Kechuol says she was not then informed that her claim form was late or that a full and satisfactory explanation was being sought.
In my view, the circumstance that Ms Kechuol had consulted her solicitor prior to the six-month period expiring, that she retained a solicitor to take steps in respect of her claim, that she did what was asked of her, and that she requires English documents to be translated together mean that a reasonable person in her position would be justified in experiencing the same delay.
It is reasonable for a person unfamiliar with the legal system to consult a legal professional and expect that they will take the steps necessary to comply with the statutory requirements for giving notice and commencing proceedings. The reasonable person test in s 66 requires a court to consider a reasonable person in the position of the claimant, see Walker v Howard [2009] NSWCA 408 at [108]. The position of the claimant must include Ms Kechuol's symptoms, experience of the accident, understanding of English, and knowledge of the legal system, and a reasonable person in that position would, I think, have done no more than what Ms Kechuol did in giving notice in making the claim.
The primary matter relied upon by the defendant is not the delay of one month in making a claim, nor the period after February 2013 but it is said to be the two-year period specifically from 18 February 2011 to 11 February 2013. There is said to have been no explanation proffered by Ms Kechuol for the delay over that period. This period concluded more than six months before the expiration of the limitation period for commencing proceedings.
Ms Kechuol was not cross‑examined on her affidavit. As indicated above, in her affidavit she deposed that in the two-year period she first met with her then solicitor from Grays Legal, obtained from him a medical certificate form that she then took to a named medical practitioner, and obtained the medical certificate. She then attended upon her solicitor and provided him with the original medical certificate. In March 2011 she completed the Motor Accident Personal Injury Claim Form and subsequently in about May 2011 signed a statutory declaration as requested.
Ms Kechuol says that in respect to the period after February 2011:
"I trusted my solicitors and relied upon them completely to ensure times and dates necessary for the progression of my matter were met.
There was little communication between Grays Legal and myself for approximately 2 years."
In February 2013 Ms Kechuol then instructed a new law firm, Prolegal, to take care of her entitlements. That firm apparently removed the proceeding from the CARS process, which is not subject to limitation periods, thereby enlivening the three-year period provided in s 109. In December 2013, some three months after the limitation period had expired, her solicitor from Prolegal, she says, "advised me that my claim was difficult and that it required specialist attention". She was referred to her current solicitors.
Although the two-year period ending on 11 February 2013 is described in brief terms, as quoted above, Ms Kechuol does make plain that she had given instructions to her lawyers, that there was little communication with them and that she trusted them to ensure that time limits and other requirements were met.
In my view, that is a full explanation of the relevant matters that occurred in that period and also, as I have already found, a satisfactory explanation in that it would be reasonable for a person in Ms Kechuol's position to take the approach that her lawyers were taking care of the matter on her behalf appropriately. See, for example, Ly v Mukdassi [2013] NSWDC 257 at [30].
The defendant relies upon two matters of difference between what is in Ms Kechuol's affidavit and what is in the statutory declaration that Ms Kechuol signed in about May 2011. First, in the statutory declaration Ms Kechuol says that "[a]fter the accident I was hospitalised and referred to [a] physiotherapist for eight months", whereas in the medical report it is recorded that, "she had no physiotherapy".
There are two reasons why I do not find this alleged inconsistency helpful in deciding the matter.
The first reason is that if there is an inconsistency it is not of direct relevance to whether the explanation is full and satisfactory. Whether an explanation is satisfactory is whether a reasonable person would have taken the steps that Ms Kechuol did. The matter of the inconsistency seems to go rather to the credit of Ms Kechuol. In circumstances where Ms Kechuol has not been cross-examined, it is difficult to find against her on credit because of a perceived inconsistency.
Secondly, the explanation for the perceived inconsistency may be because the medical report incorrectly recorded her instructions, or alternatively, correctly recorded her as not having physiotherapy because she did not adopt the course of physiotherapy to which she was referred. Perhaps there are other explanations. In any event, Ms Kechuol has not been given an opportunity to explain the matter and in those circumstances, I do not think it assists to determine whether or not her explanation was full and satisfactory.
The other inconsistency raised is that the statutory declaration states, "I did not have any relatives and/or close to [kin] who will do the application for and/or on behalf of me" whereas in the affidavit she does refer to some conduct done in relation to her claim by either her son or her nephew. Again she has not been asked to give an explanation of this. One matter that may offer some explanation is that in the affidavit of Ms Kechuol she discloses that she signed the statutory declaration without knowing what it was. She says in her affidavit:
"I was asked to attend upon [my solicitors'] office to sign something. At that time I did not know what it was or why I was signing it. I was simply told that it was necessary for my claim.
I have since been informed that it was a Statutory Declaration."
In circumstances where Ms Kechuol does not have an understanding of English, her signature on the statutory declaration consists of what seems to be a printed capital letter A, there is no indication on the statutory declaration that it was interpreted for her benefit and she was not cross‑examined, it is inappropriate to make adverse findings against her. A perceived inconsistency does not justify them.
Accordingly, I find that the explanation given by Ms Kechuol is, in her circumstances, a full and satisfactory explanation for the relatively short periods of delay in her failing to comply with s 73 or s 109 of the Motor Accidents Compensation Act 1999.
A final point was raised by the defendant in respect of Ms Kechuol's late claim which involves an application of s 109(3)(b) of the Motor Accidents Compensation Act 1999. This precludes the leave of the Court from being granted unless:
"(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."
The meaning of the word "likely" in this context does not mean, as might be supposed, "more likely than not" but has been held to mean a "real chance" or a "real prospect", see Eades v Gunestepe [2012] NSWCA 204 at [10]. That is not a demanding test.
Ms Kechuol submitted that the likely damages were in the order of $250,000. That estimate might not be realistic, but this is not the occasion to make a determination of Ms Kechuol's damages. Rather the question is whether there is a real chance or a real prospect that Ms Kechuol may obtain a sum not less than 25% of the maximum amount for non‑economic loss. That threshold, the parties agreed, was the sum of $119,250.
In the expert medical reports tendered as part of the application, an orthopaedic surgeon assessed Ms Kechuol's whole person impairment at 12%. He also gave some detail about the injuries suffered by Ms Kechuol. She was diagnosed with a ruptured medial collateral ligament injury to her right knee. She remained in hospital for five days and then on crutches for a further two months. As she gradually got off her crutches, the pain slightly diminished in her right knee but she was putting a lot more weight on her left leg and that led to increasing pain in her left hip.
Dr Peter Giblin, the orthopaedic surgeon, continued:
"Today, her chief complaint is a constant pain, sharp and stabbing in nature involving her left hip and causing her to constantly limp.
Her second complaint is that her right knee feels unstable, clicks and grinds and aches.
Her third complaint is the scars on her face which she says are obvious and ugly."
Dr Giblin continues:
"She can no longer kneel or squat, has trouble going up and down stairs or slopes, and is heavily reliant on the family members to do the housework and shopping. She says that she is unable to be effective in terms of lifting or carrying anything, vacuuming, mopping or related housework.
She has to take analgesics every night to help herself sleep."
Dr Giblin agrees that Ms Kechuol has quite obvious scars on the right hand side of her face and "[t]he right knee has a moderate to gross instability involving the medial collateral ligament". The doctor gives his prognosis:
"Her condition is stable but her prognosis is guarded.
Her symptoms are unlikely to spontaneously improve.
I assess her as permanently unfit to use her lower extremities for prolonged periods of walking, standing, kneeling and squatting, pivoting and twisting, stair and ladder climbing, working at heights or repetitious impact activities."
The doctor also referred to "[s]urgical considerations" including a "[r]ight knee medial collateral ligament stabilisation" costing in the order of $12,000 and a "[r]ight total knee replacement" costing approximately $25,000, both of which would require her to be off work for three or four months or more. He also said that she "merits consideration for daily physical support in terms of domestic responsibilities".
When one takes into account the assessment of her non‑economic loss, her past out‑of‑pocket expenses including but not limited to her pain relief, her future out‑of‑pocket expenses including the potential for significant and expensive medical procedures, and the prospect of her making claims for past and future domestic assistance, it seems to me that there is a real chance that her total damages might exceed the amount of $119,250.
In those circumstances, the requirement under s 109(3)(b) is satisfied.
Therefore, for the reasons I have given, including particularly that Ms Kechuol relied upon her solicitors, that she had little or no understanding of the legal system and the English language, and that she took steps to change solicitors when she found that the service she was obtaining was unsatisfactory, I find that she did take the reasonable steps required under the Act, and that leave should be granted.
[4]
COSTS
In respect of costs, the parties agree that in the event that Ms Kechuol was successful, the costs would be costs in the proceedings.
[5]
ORDERS
Accordingly, the orders of the Court are:
1. Grant leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999.
2. Dismiss the defendant's notice of motion.
3. Costs of the motions be costs in the proceedings.
[6]
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Decision last updated: 01 June 2015