Kiritheran Thambirajah v Allianz Australia Insurance Limited

CONTEXT

1. On 21 November 2016, at around 5:30am, the Plaintiff was the driver of a truck travelling south on the M1 near Jolls Bridge when at a speed of approximately 90km/h the truck was observed, by an immediately close driver of a motor car, to "start to wobble" and veer to the left, coming to collision with a rock wall whereupon it burst into flames and bounced back onto the freeway. The Police COPS narrative recorded that the Plaintiff said that his truck malfunctioned causing the accident. Police concluded "there is no evidence to support or refute this as the truck was almost completely destroyed by fire (although examination of what was left of the truck did not show any mechanical issues)."
2. The Plaintiff was born in Sri Lanka on 27 June 1976, he was aged 40 years at the time of the incident and is currently aged 47 years. He immigrated to Australia as a refugee in 2010, and for several years lived in various refugee camps and was unable to work because of his immigration status. He has not learned to speak or read English fluently and only has a very limited command of the English language. For the purposes of dealing with lawyers in the course of his claim, he relied heavily on his daughter to translate both verbal and written communications for him. At the time of the incident, his daughter was aged approximately 14 years, she is now aged 21 years.
3. At the time of the incident the Plaintiff was employed as a Heavy Vehicle Driver with H1 Logistics Pty Ltd and he was driving in the course of that employment.
4. He suffered significant injuries to his left leg, lumbar spine, cervical spine, shoulders, arms, and right hip, as well as Post Traumatic Stress Disorder and Major Depressive Disorder consequent of the incident. The impact of his disabilities caused he and his wife to take their family to Queensland on around 21 December 2016 because of the resource of assistance from relatives there.
5. The Plaintiff was hospitalised because of his very serious injuries until discharge on 25 November 2016. He completed a Work Injury Claim Form with the assistance of his daughter on 23 December 2016. That claim was accepted by the workers compensation insurer. He received weekly compensation and payment of treatment expenses from that insurer. On 4 February 2017 he underwent a Police Interview regarding the accident, with the attendance of his daughter to assist him with interpreting and made a Statement to Police which was recorded.
6. On 16 March 2017, the Plaintiff initially engaged Maurice Blackburn Lawyers ("MBL"), again with the assistance of his daughter.
7. It is common ground that the Plaintiff received legal services in relation to his Workers Compensation Claim from MBL between 16 March 2017 and 15 February 2018, that MBL then referred the matter along with other matters of its type to Carroll & O'Dea Lawyers ("COD") who provided legal services to him between 15 February 2018 and February 2021, and that between February 2021 and May 2022, legal services in relation to the incident were provided by Beilby Poulden Costello Lawyers ("BPC").
8. There is no contest that the Plaintiff has any better than a poor comprehension of spoken and written English language. There is no contest to the fact that he promptly engaged solicitors following the incident and retained solicitors for the whole of the period to the present. Since May 2022 he has been represented by Somerville Laundry Lomax Solicitors ("SLL").
9. There is no dispute that consequent of the incident, the Plaintiff has continued to receive significant medical treatment for his physical injuries and that he has suffered significant psychiatric injury. For the purposes of s 109(3) of MACA, there is no contest that should the Plaintiff be entitled to proceed in his claim for damages, there is a real prospect of him establishing that entitlement in excess of the requisite threshold of 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident.
10. For the purpose of considering the question of whether or not the Plaintiff, in this Application, makes a full and satisfactory explanation for the delay in prosecuting his claim, I consider the Report of Dr David Storor, the Plaintiff's treating psychiatrist, dated 1 August 2022. Dr Storor had treated him since early in 2021 at the time of writing that 1 August 2022 Report to Centrelink. I extract from it as follows:

• That from soon after the date of the incident, the Plaintiff has suffered Post Traumatic Stress Disorder and Major Depressive Disorder "due to the horrific and traumatic nature of the truck accident and his physical injuries."
• Those diagnoses were first arrived at in 2017 and the Plaintiff has continued to suffer extensive post traumatic symptoms including flashbacks, nightmares, intrusive recollection of the accident, increased startle response, hypervigilance and phobic anxiety related to traffic - he has withdrawn from social activities and is virtually house bound.
• Dr Storor confirmed that due to the severity of the Plaintiff's physical injuries and "serious mental health problems he remains unfit to participate in paid employment or undertake job seeking" and that "there is no real prospect of him ever engaging in gainful employment in the foreseeable future due to his extensive injuries sustained in the truck accident in 2016."
• Despite trials of medication and regular counselling, there has been no demonstrable improvement in the Plaintiff's mental health.
• The Plaintiff suffers "… a severe disability. His concentration is adversely affected by depression and post trauma symptoms. He struggles to follow television programs. He relies on his daughter to handle his paperwork and household affairs" as well as "… to make decisions on his behalf" because he "… is unable to plan ahead in a purposeful way due to his severe depression and post trauma symptoms."
• The Plaintiff's daughter would have achieved the age of approximately 20 at the time of Dr Storor's report.

1. According to the Plaintiff Chronology (MFI 3) which history of events is not, to my understanding, relevantly contested, the Plaintiff underwent a significant course of surgery for his physical injuries for about three years following the incident. A femoral nail was removed as recently as 30 September 2020, which surgery was associated with the development of an infection at the wound site. He has suffered a shortening of his left leg due to the injuries to his femur and suffers aggravation of pain with activity. He uses a walking stick. His Statement of Particulars filed 22 May 2023 describes very significant impairment and includes claims for domestic assistance as well as damages for past and future loss of earnings.
2. On the whole of those facts, a reasonable person in the position of the Plaintiff engaged solicitors to prosecute and advise on his legal rights of claim, and the requirements of advancing any claim, including the lodgement of required claim forms and in relation to the commencement of proceedings, whilst being a person who:

• has a poor command of the English language;
• is a recent immigrant from a place of different culture and law;
• is forced to rely upon their immigrant daughter, who was a minor until 2020, for translation;
• experiences a course of painful and discomforting physical treatment and rehabilitation;
• is of such adversely affected concentration that they struggle to follow a television program and are therefore unable to plan in a purposeful way;
• is lacking in confidence and relying on their daughter to make and assist them in the making of decisions on their behalf; and
• suffers compromised mental health due to ongoing severe Post Traumatic Stress Disorder and Major Depressive Disorder symptoms.

1. The Defendant received the Plaintiff's MACA Claim Form on 6 April 2021, 4.5 years after the incident of the truck collision. The proceedings were commenced by Statement of Claim 6.5 years after the incident.
2. The Defendant originally submitted that it is prejudiced in the opportunity to meet the Plaintiff case in the general sense of presumption based on the effluxion of time and in two specific regards: MFI 1 at [40]. The specific prejudices identified are that the owner of the truck, Mr Fazzari, died in June 2022 and secondly that a mechanical inspection of the truck cannot now be carried out, and the Plaintiff has pleaded "blameless accident": SOC at [9]. Pursuant to s 7E MACA, there is no entitlement to recover damages in respect of injury to the driver if the motor accident concerned was caused by an act or omission of that driver. During oral submissions the Defendant did not press its submission of actual prejudice based on the loss of opportunity to consult with the insured owner of the truck. In fact, the Defendant was notified of the claim long before the Mr Fazzari's passing.
3. The claim of prejudice arises in circumstances where:

• there is substantial documentation contained in the Plaintiff's Workers Compensation Claim records and other medical records;
• the Plaintiff and witnesses to the motor accident collision are known from Police COPS record and available;
• the owner of the truck having been available for more than one year following the Defendant being notified of the claim; and
• there is a Police COPS Record that "… the truck was almost completely destroyed by fire" and that there was "no evidence to support or refute" the Plaintiff's contemporaneously made Statement to Police that a malfunction of the truck caused the accident.

1. My direct enquiry of counsel for the Defendant did not result in his identifying another known prejudice. In my opinion, particularly given the availability of the Police and eye witness evidence, prejudice is not shown to be significant.

THE EVIDENCE

1. In support of the Application, the affidavit of Mr Martin Samyia, Solicitor, made 14 July 2023, was read for the Defendant. For the Plaintiff, the affidavits of his present solicitor, Mr Nathan Andrew Job, dated 25 August 2023, 30 October 2023, and 1 November 2023 as well as the Plaintiff's own affidavit of 24 August 2023 and the affidavit of his daughter, Kishani Kiritheran, made 25 October 2023 were read. All affidavits were read without objection. The Defendant did not require any of the Plaintiff witnesses for cross examination. There was no oral evidence. The Court was informed that pursuant to the Notices to Produce issued by the Plaintiff, the whole of his prior solicitors' files were produced and made available to the Defendant.
2. In short, in addition to the evidence of the Plaintiff, his daughter, and his current solicitor, the entire written record of solicitors who have represented the Plaintiff from his promptly instructing MBL following the incident of collision, Police records of the incident of collision, the Plaintiff's Workers Compensation records, and his medical records are available to the Defendant. Neither the Plaintiff, nor his daughter, were cross examined in relation to or on the basis of those records, or at all.
3. Pursuant to s 72 MACA, the due date for service of the Plaintiff's Claim Form was 21 May 2017. It was served on 6 April 2021, a delay of about 3 years, 10 months and 2 weeks.
4. Counsel for the Defendant assisted greatly by confining the real issues to, as he put it, the real problems having started from 20 June 2018, when COD did inform him by email: "Further, to pursue a motor vehicle accident claim a claim form must be lodged within 6 months of the accident which in your case this date has now ceased. In order to pursue this claim you will be required to provide a full and satisfactory explanation for the delay and seek leave to continue with your claim. Therefore, we kindly ask whether or not you have ever completed a Motor Accidents Personal Injury Claim Form for your previous lawyers, Maurice Blackburn Lawyers. If you haven't, please now find enclosed for your information and attention, a copy of this Personal Injury Claim Form… Once you have completed this document and the medical certificate we kindly ask that you sign, date and return the form to our office so we can lodge it with the insurance company. We will contact you further regarding providing an explanation for the delay and provide you with further advice when more material becomes available."
5. In her affidavit, the Plaintiff's daughter, who was in 2018 a school girl aged 16 years, deposed: "Neither of my parents can speak, read or write English fluently and rely upon me to translate for them." (at [4]) … "From the date of the accident, dad become (sic) more reliant upon me to help him both with care at home and also with handling his paperwork and affairs. If dad received correspondence from medical providers, insurers, or legal advisors I would read the content of the document to him and translate. I would then assist him completing forms as required. I would also assist in translating for dad at appointments and over the phone." (at [7])
6. Ms Kiritheran recalled assisting the Plaintiff with completion of his Workers Compensation Damages Claim Form following the incident of collision in about 2016 (she was then about 14 years of age); that in March 2017 the Plaintiff asked her to contact the law firm MBL and she spoke to a solicitor on the phone and assisted her father with translation, including by describing the circumstances of the accident to the solicitor. She recalled advice of MBL that the claim would fall under the Workers Compensation Scheme, that her father commenced receiving weekly benefits under that scheme as well as payment of his treatment expenses. She translated, for her father, the solicitor's advice that he could make a lump sum compensation claim under that scheme, but that could not be done until such time that his injuries stabilised. Ms Kiritheran deposed: "At no stage were we advised by our Maurice Blackburn Lawyers that Dad may have potential rights under the Motor Accident Scheme." (at [12])
7. Although counsel for the Defendant does not press the period of MBL conduct as significant for the purposes of this Application, file notes from the period during which the Plaintiff was represented by MBL show that, through his daughter, he made repeated requests for updates or information regarding the progress of his Workers Compensation rights.
8. When, due to a change in the practice of MBL, conduct of the Plaintiff's matter was transferred to COD, Ms Kiritheran was assisting her father when she recalled that in June 2018, he was advised that he may be entitled to advance a Motor Vehicle Accidents Claim (the email advice quoted above). She deposed: "During our initial discussions we were advised that there may be limitation periods that may apply, including the requirement to have lodged a Personal Injury Claim Form within 6-months of the accident." (at [15])
9. The COD file shows that voicemail messages were left on Ms Kiritheran's phone during school hours and that COD emailed Ms Kiritheran regarding things in the prosecution of the Plaintiff's claim required by COD.
10. Ms Kiritheran was surprised not to have received that advice from MBL and, on behalf of the Plaintiff, informed COD of this. She assisted the Plaintiff in completing the Claim Form. It was returned to COD in September 2018. But because the Plaintiff was not aware of the registration details of the truck and could not enter them in the Claim Form, COD advised that they would make enquiries of NSW Police in an effort to obtain that information. Ms Kiritheran deposed: "… From the conversations I was involved in with dad, I understood that they would proceed in lodging the Motor Vehicle Claim, and if they required any further information from us, they would request same, and dad was otherwise required to wait until his injuries stabilised. During this period, I recall providing authorities to [COD] signed by my father so that they could obtain information, including the NSW Police Report." (at [17])
11. Ms Kiritheran's affidavit corroborates the affidavit evidence of her father. There is, as I understand it, no issue that MBL, his promptly instructed and initial solicitors, did not advise him of potential entitlements under the Motor Accident Compensation Scheme. Commencing 20 June 2017, whilst in the course of treatment for and rehabilitation relating to his injuries to his left leg (fractured femur), lumbar spine, and cervical spine, he was placed on a Mental Health Care Plan by his treating doctor and referred for psychological assistance. He deposed (at [34]) that whilst he retained MBL, he understood that he could not advance his Workers Compensation Claim further until his injuries stabilised after completion of his surgical course of treatment and that he "remained unaware of any potential rights" that he may have had under the Motor Accident Compensation Scheme. He was, at the time of receipt of the letter from COD dated 20 June 2018, which first advised him of his entitlement to lodge a Claim Form, ambulating with the assistance of a crutch and suffering demotivation, depression, and difficulty with concentration. He deposed (at [40]) that he became more and more reliant on his daughter to assist him with his decision making and handling of paperwork.
12. He deposed (at [44]-[112]): "[44] … I trusted that my interests were being protected. … [45] I received the first notice of my potential rights under the motor accident scheme in a letter from [COD] in or about June 2018. From memory, the letter had enclosed a Motor Accident Personal Injury Claim Form. The letter was received by my daughter and interpreted for me. I had not seen this form before, and my daughter and I had difficulty completing it. [46] I recall having a telephone discussion with a solicitor from Carroll O'Dea shortly after receiving the letter in June. Kishani was part of that phone call and assisted in translating. I recall being asked if I had ever been advised of, or was aware of, the time requirements to lodge a motor accident claim. I informed them that I had not previously been advised of the time requirements. This caused me some concern. However, I was advised that the form could still be lodged outside of these timeframes and that an explanation for delay could be provided to the insurer. [47] There were some parts of the form that I was unable to answer, including the registration of the truck I was driving at the time of the accident. For these reasons, it took me several months to complete the form with the assistance of my daughter. During this time, I conducted enquiries of my employer and looked through documents with my daughter so that I could answer the questions in the claim form. [48] I was also of the understanding that my solicitors were to contact the NSW Police to obtain the registration details of the vehicle I was driving at the time of the accident, and that once the information had been obtained that the form would be lodged. [49] In July 2018, I received a letter from Carroll O'Dea enclosing a request for a police report with a letter asking me to sign the form and return it. [50] I signed and returned the form on 31 July 2018. [51] On 1 August 2018, I was sent an email by Carroll O'Dea advising that I had not signed the form in all the places required and was directed to sign a further section, [52] I believe that on or about 22 August 2018 my daughter returned the signed application for the police report to Carroll O'Dea. [53] On 25 September 2018, I received an email with a further copy of the application for the police report from Carroll O'Dea asking me to sign and return it. [54] I believe that the form was returned to Carroll O'Dea on or about 25 September 2018. [55] I have only ever done manual work and paperwork frustrates me. I complete the form as best I could with the assistance of my daughter and returned it to them. I was not able to obtain all the information and assumed that my solicitors would assist me with the matters I could not answer. [56] On 12 October 2018, I was sent an email by Carroll O'Dea asking me to identify the police even number. [57] On 29 October 2018, my daughter provided the police event number to Carroll O'Dea. [58] In or about November 2018, my daughter telephone Carroll O'Dea and informed them that I had recently had further surgery on my leg. I understand that after that telephone conversation. Carroll O'Dea sought funding to pursue a claim for lump sum benefits under the workers compensation scheme. Period January 2019 to June 2020 Medical [59] During this period, I continued to regularly consult with my GP Dr Sudhakar and my treating specialist Dr Neilson. [60] I continued to experience significant symptoms of pain, discomfort and reduced range of movement in my lumbar spine, cervical spine, and left leg. I also developed worsening symptoms in my forearms on both sides, including loss of grip strength and numbness. [61] I continued to participate in hydrotherapy. I also underwent further facet joint injections in my spine. [62] My psychological symptoms remained significant. I continued to have intrusive nightmares, flashbacks, disturbed sleep, lack of motivation, and loss of concentration. [63] I continued to take medication for pain and for my psychological symptoms. [64] In or around October 2019, I was referred to a pain management program with Axis Rehabilitation. I recall attending approximately four sessions. [66] It was in or around February 2020 when the COVID-19 pandemic occurred. Legal Matters [66] During this period, my claim continued to be handled by Carroll O'Dea. [67] In or about early 2019, I recall being advised by my solicitors that they were concerned that my injuries had not stabilised and that we needed to ensure this occurred before pursuing the claim for lump sum benefits. I was also provided some preliminary advice about a potential claim for Total and Permanent Disability benefits. [68] I received a letter from my solicitors dated 28 May 2019 seeking my instructions as to whether my condition had stabilised. [69] On or about 29 July 2019, my daughter telephone Carroll O'Dea and advised that I did not expect to require any further surgery. As a result, I was of the understanding that my claims would be pursued. [70] Throughout the rest of 2019, my solicitors actively sought to pursue the claim for lump sum benefits under the workers compensation scheme. I do not recall receiving any further advice about my entitlements to make a motor accident claim during this time. Period July 2020 to December 2020 Medical treatment [71] In or about July 2020, I changed treating GPs to Dr Ratnam [72] During this period, I regularly consulted with Dr Ratnam and also remained under the care of Dr Neilson. [73] I continued to experience painful symptoms during this period in my lumbar spine, cervical spine, left leg, and forearms. [74] I remained reliant upon a walking stick and had developed a significant gait. [75] I continued to take medication for my physical injuries and psychological injuries. [76] On 30 September 2020, I underwent further surgery on my left leg which include the removal of the femoral nail by Dr Neilson at the Mater Private Hospital. I developed an infection at the wound site after the surgery and was placed on a short round of antibiotics by Dr Neilson. [77] In or around October 2020, I was referred by Dr Ratnam to Dr David Storor, consultant psychiatrist due to my worsening psychological symptoms. Legal Matters [78] During this period, my claims remained under the carriage of Carroll O'Dea. [79] I remained of the understanding that my claim could not be finalised until my injuries had stabilised. [80] As a result of my increasing frustration with the lack of progress, I recall asking Kishani to contact a Queensland law firm DW Lawyers in or around September 2020 and having a discussion about my claim. I did not transfer my file at this time. Period January 2021 to April 2022 Medical treatment [81] During this period, I continued to regularly consult with my GP Dr Ratnam. [82] On or about 31 May 2021, I was referred to Dr Michael Bryant (neurosurgeon) for further opinion on my physical injuries. I was subsequently referred to Dr Antony Winkel to have nerve conduction studies on 17 June 2021. [83] During an appointment with Dr Bryant on 16 September 2021, I was informed I had bilateral carpel tunnel syndrome and required carpel tunnel release surgery. This surgery has been declined by the workers compensation insurer. [84] I attended a further 2-3 consultations with Dr Bryant. [85] I also attended a further consultation with Dr Storer. [86] I continued to experience painful symptoms in my lumbar spine, cervical spine, left leg, and forearms. I also continued to experience significant psychological symptoms including flashbacks, nightmares, disturbed sleep, depression, and lack of concentration. [87] I continued to be prescribed pain medication and medication for my psychological injuries. Legal Matters [88] As set out in my statutory declaration, due to the lack of progress by Carroll O'Dea I transferred my legal file to Beilby Poulden Costello Lawyers (BPC) in or around February 2021. [89] I was confused and frustrated when informed by BPC lawyers that Carroll O'Dea had not lodged the claim form I had completed in September 2018. Upon their advice, I again completed a Motor Accident Personal Injury Claim Form with the assistance of Kishani and sent it to BPC so that they could lodge the claim on my behalf. [90] Over the course of the next several months, I provided signed authorities to my solicitors at the request of the CTP insurer and provided my statutory declaration dated 14 September 2021. [91] On or around 8 September 2021, I received correspondence from the workers compensation insurer advising that my weekly benefits were ceasing. This caused significant concern regarding my ability to provide financially for my family. I was advised that I could not challenge the decision until my injuries stabilised and my whole person impairment was assessed. [92] I was again becoming increasingly frustrated and wanted to obtain another opinion. Accordingly, I had my daughter Kishani contact Somerville Laundry Lomax Solicitors in Northern NSW and I met with Nathan Job, along with Kishani, on 21 March 2022 and had some preliminary discussions. I was advised SLL could not provide fully informed advice until they were able to obtain a copy of my file. Period May 2022 to date Medical treatment [93] During this period, I continued to regularly consult with my GP Dr Ratnam. [94] I also consulted with Dr Storor regarding my psychological condition. [95] I continue to suffer from pain and discomfort in my lumbar spine, cervical spine, left leg, and forearms. I continue to take pain medication. [96] I continue to suffer from a significantly altered gait and have been referred to a podiatrist to consider orthotics, [97] I have attended a further consultation with Dr Bryant; however, the workers compensation insurer continues to refuse to agree to. pay the cost of the proposed carpel tunnel release surgery. [98] My psychological wellbeing has deteriorated. On or about 1 August 2022,1 attended Dr Storor who provided a supporting letter to provide to Centrelink so that I could obtain financial assistance. Annexed and marked "D" is a copy of that letter. [99] I have remained virtually housebound during this period. I remain heavily dependent upon my wife and daughter and am not capable of living independently. I rely heavily upon my daughter to assist in translating and handling my affairs and paperwork. This has become increasingly difficult for Kishani as she is studying a course to become a paramedic which involves study and work placements, I feel I am becoming an increasing burden upon her. Legal matters [100] In or around May 2022, I instructed SLL to take carriage of my matter and obtain my file from BPC. I understand my solicitor made this request on or around 12 May 2022. [101] BPC refused to release the file until an agreement was reached regarding their legal fees. I initially did not agree to the amount that BPC were claiming as I was of the understanding that BPC were claiming the costs also associated with my workers compensation file which I understood was covered by a grant of funding. [102] The dispute regarding outstanding fees with BPC was resolved in or around January 2023 and I am informed my current solicitors received the hard copy file in or around 3 March 2023. [103] On 24 February 2023, my solicitor provided to me a notice that had been sent by the CTP insurer which required me to commence proceedings no later than May 2023. [104] On or about 22 May 2023, I instructed my solicitors to file the Statement of Claim in these proceedings. My focus since the accident [105] Since the accident, my primary focus has been to concentrate on my recovery and seeking the necessary treatment for my physical and psychological injuries. [106] I have had multiple consultations with treatment providers, a number of surgeries, and several radiological investigations. [107] I have continued conservative treatment. I have also been prescribed ongoing medication. It has been an extremely difficult time and a complete struggle. At times I feel completely helpless. [108] I have come to rely heavily upon my daughter and wife for care and for the management of my affairs. I feel like a burden to my family at times. [109] I have consulted with legal service providers since early 2017 and relied upon their advice. This has at times proven difficult, particularly given the language barrier. I was of the understanding that my claims were being properly managed. [110] Prior to about June 2018,1 had no knowledge of my potential rights under the motor accident scheme. I also had no knowledge of the limitation issues regarding both the requirement to lodge a personal injury claim form or for commencing proceedings. I remained confused even after the advice provided in June as I was repeatedly advised that my claim could not be finalised until my injuries stabilised. [111] I was of the belief that after completing the personal injury claim form in September 2018 and returning it to my solicitor at the time, that my motor accident claim could be finalised once my injuries stabilised. I was not aware that the claim form had not been lodged until the advice of BPC in or about February 2021. [112] l am affirming this affidavit and seeking the leave of the Court pursuant to s 109 of the Motor Accident Compensation Act 1999 (NSW), to commence proceedings out of time by way of Statement of Claim against the defendant."

DOCUMENTS PRINCIPALLY RELIED ON BY DEFENDANT

1. On 16 June 2021, the Plaintiff provided a Statutory Declaration to the Defendant in which he explained his reasons for late service of his Claim Form. He provided particulars of the incident of collision and of his subsequent medical treatment, naming the relevant providers. He gave the particulars of his Workers Compensation Claim including the relevant file number and then the history of his retaining, in turn and consecutively over the whole of the period, Messrs MBL and COD. He explained (at [23]) that with the assistance of his daughter he did partially complete the Claim Form and returned it to his solicitors on 24 September 2018. He enclosed a copy of that incomplete Claim Form. He understood that the Claim Form had been served until he was recently advised that it had not. He stated (at [25]): "I relied upon the advice given to me by my solicitors and I was not aware that the motor accident claim was not pursued. I am now advised by my current solicitors [BPC] that it appears that my former solicitors made a decision at some stage to pursue a work injury damages claim against my employer and to abandon the motor accident claim. I was not given advice about this and I did not instruct my solicitors to take this step. The advice that I was given was that it was necessary for my injuries to stabilise so that the claim could not be pursued, as the claim would need to be made on a 'once and for all basis'."
2. On 5 February 2021, whilst in the process of taking over the Plaintiff's claim, BPC emailed him, enclosing a written authority for BPC to take over carriage of his claim and a draft Claim Form. The letter confirmed BPC's advice that the circumstances of the incident of collision meant that he should make a claim for a blameless motor vehicle accident under MACA. The letter continued: "… It is therefore important that the claim form be completed and served upon the third party insurer of the truck. The claim form should have been submitted within six months of the date of the accident. You are however entitled to make a late claim provided that you have a full and satisfactory explanation for the delay. After service of the claim form the insurer will probably ask for that explanation and we will assist you in preparing that document…"
3. This evidence corroborates the Plaintiff's disclosure and explanation that he was unaware until that email of 5 February 2021 from BPC that the document partially completed by him in September 2018 with the assistance of his daughter had not been served. He returned the Claim Form to BPC on 6 April 2021. At [30] of the Statutory Declaration he stated: "I have not made a personal injury claim before this accident in Australia and I am not aware of the Australian law. I was advised by [COD] that I would need to submit a Motor Accident Personal Injury Claim Form but I was not told by them how long I had to put in the form with the Insurer. It was not until I received advice from [BPC] that I understood that the claim form should have been served within six months of the accident. Had I been aware of that time limit and been advised that I should pursue a motor accident claim I would have completed a claim form as quickly as possible."
4. It is obvious from the above quoted passage of the letter of COD, dated 20 June 2018, that in fact the Plaintiff was advised that the time limit for lodgement of the Claim Form was six months. The Plaintiff acknowledged the mistake in his Statutory Declaration at [30] in that regard. It can be seen from the above quoted passage of that 20 June 2018 written advice from COD that there was nothing said to the Plaintiff to indicate to him that there was a real urgency in lodgement of the Claim Form, or otherwise, in relation to the steps for him to take in order to proceed with this personal injuries claim under MACA.
5. I observe that the 20 June 2018 email assured the Plaintiff that COD would contact him regarding provision of his explanation for delay, if the insurer required it, and that COD would provide further advice in relation to his MACA claim when appropriate to do so.
6. On 30 March 2021, BPC created a note of a telephone attendance upon Ms Kiritheran advising that BPC had received the Plaintiff's Claim Form but noted that it did not contain the registration number of the truck, which information was required before the Claim Form could be served. On the same day, having located a photograph of the truck from her father and his recollection of what the registration number should be, Ms Kiritheran telephoned BPC back. On the same day, Ms Kiritheran emailed a Daily Telegraph news item reporting on the collision.
7. On 19 November 2021, the Defendant's solicitors wrote requiring further information of "full and satisfactory" explanation for the delay. In my opinion, the letter is to some extent wrong or at least unclear and lacking specificity in the inquiries which it made. In regard to the enquiry numbered paragraph 1, in this application, counsel for the Defendant does not press the period until 20 June 2018 as presenting a real problem and therefore that enquiry made in the letter falls away. Paragraphs numbered 2 to 4 are wrong in saying that the Statutory Declaration provided "no explanation" or "no information". The enquiry in paragraph numbered 5 is answered by the Plaintiff having relied on his solicitors to pursue Police for the registration number of the truck, he during that period, believing that his Claim Form had been served on the Defendant.
8. Commencing 3 April 2018, the file note of COD shows that Mr Dale of COD was pursuing MBL for any MACA claim, and that on enquiry, MBL confirmed that it did not hold a "MVA" file.
9. A COD file note (not regarding a MACA claim) of 31 May 2018 recalled a telephone instruction on 3 May 2018, not from the Plaintiff, but from his daughter Ms Kiritheran, in which she advised that they had received the email with requests for the Plaintiff's authorities and his statement. The file note records, "She is going through them with her father as he isn't very good with understanding or speaking English." Ms Kiritheran stated "Dad's getting very stressed about this as our family was dependent on his income. So can you tell us [if you] are taking on this matter?". She was informed that COD would take the matter on as soon as the documents were returned. The file note indicates that Ms Kiritheran stated, "Also we need to know the process so are you able to advise us?". This is clear evidence of the Plaintiff's reliance on his legal representatives from time to time to assist him with the process, and of his willingness to participate in it as his solicitors would require him to do.
10. A file note of Mr Dale of COD, which counsel for the Defendant described as critical, is dated 3 July 2018; i.e. - about two weeks after the email advising of the six month period for lodgement of a claim form; shows that the Plaintiff, with the assistance of his daughter, informed Mr Dale that at the time of the incident of collision he heard an explosion which he suspected was the front left tyre, but he was unsure; that the truck pulled to the left side and when he tried to turn it back, it would not. In the latter part of the note, after two horizontal lines, there is a reference, "JMD [the initials of Mr Dale] advice on MVA claim". It refers also, following an arrow, to barrister advice, an updated statement, and authorities. I observe that barrister's advice was not obtained.
11. Counsel for the Defendant submitted that this was a reference to advice having been given to the Plaintiff. In my view, it is a note to self by Mr Dale, contemplating that following consideration of the material available to that point, advice should be provided and contemplation of that advice coming from a barrister. On the next page, the handwritten note records that Mr Dale serviced the Plaintiff as follows:

• Enquired into whether or not the Plaintiff had ever been advised in relation to lodging a Claim Form and the Plaintiff answered no. Specifically the note records: "Are you aware of the 3 year time limit", to which the Plaintiff answered "No, they just said they would get back to me investigating the claim".
• That this conversation in July 2018 was the first time that the Plaintiff had heard about a three year time limit.
• That Plaintiff was advised that investigations for a Motor Vehicle Accidents Damages Claim will occur as documents are received.

1. The Defendant submitted that those parts of Mr Dale's July 2018 file notes are the only evidence putting content to the Plaintiff's affidavit evidence at [110]-[111] quoted above, that he was not advised of the urgency of lodging a Claim Form for his motor vehicle claim or that it had not been lodged until he was informed to that effect by BPC in February 2021.
2. Counsel for the Defendant submitted that in those circumstances an affidavit of Mr Dale is required in order for the explanation for delay to be full. It was not put that anywhere in the documentation of the lawyers who have represented the Plaintiff over the period from very soon after the incident of collision, that there is any evidence of him ignoring or delaying when advised of urgency in the provision of particulars of this claim or otherwise in the requirements of this claim. Indeed, there is no other evidence, other than that referred to above, of what the Plaintiff was advised. In none of that material is there evidence that it was put to him that urgent action on his behalf was required. For instance, there is no evidence that it was explained to him that an application such as that presently under consideration, both in relation to ss 72 and 73 and in relation to s 109 MACA, was a possibility.
3. Correspondence from BPC commencing 5 July 2021 shows:

• On 5 July 2021, BPC emailed Mr Dale at COD. It is apparent from the correspondence that BPC had considered the COD file. The email refers to "We note from your file".
• On 5 July 2021, BPC informed Mr Dale that the COD file did not show that the Claim Form had been served. I observe that that communication corroborates the surprise expressed in evidence by the Plaintiff and his daughter; because of his assumption being that the MACA claim had been commenced.
• BPC enquired of Mr Dale of COD in the following terms: "It subsequently appears that your intention was to make a claim against the employer for damages on the basis that the vehicle was not properly maintained, which we note would result in a work injury damages verdict in the event that claim were successful. We are not however able to determine when a decision was made not to pursue the MACA claim… Would you please consider and advise whether you would be prepared to prepare an explanation to assist the Claimant with his claim in the event that request is made."

1. That email corroborates the Plaintiff's explanation that he trusted COD to progress his MACA claim but they prosecuted only other avenues for damages.
2. Counsel for the Defendant points to this email and argues that the Plaintiff is required to have subpoenaed the evidence of Mr Dale as to his unilateral decision to abandon the MACA claim. It will be recalled that, in the above quoted passage from [25] of the Plaintiff's 16 September 2021 Statutory Declaration, he referred to BPC having informed him that his former solicitors (i.e. COD) had made a decision at some stage to abandon the claim.
3. My first observation is that the letter from BPC reveals that documents within the COD file show that the determination was internally made to pursue a Work Injury Damages Claim. There is no evidence that this is a direction of claim advised to the Plaintiff or instructed by the Plaintiff.
4. On 30 August 2021, BPC emailed Ms Kiritheran informing, in regard to instructions on the Statutory Declaration: "To the extent that you are not already aware, you should realise that your claim is already out of time. There are numerous procedural steps that need to be undertaken to cure those problems and any delay in doing so may ultimately defeat your claim. That is to say that if we do not quickly do all things necessary to regularise your claim it may well be lost as a result… Would you please in the circumstances consider the Statutory Declaration and let us have your instructions in response as a matter of urgency."
5. Ms Kiritheran telephoned the next day to apologise and to inform that she had been ill and unable to help her father. On 6 September 2021, BPC asked for further information toward completion of the Statutory Declaration. On 16 September 2021, the Plaintiff made his Statutory Declaration explaining his delay in the bringing of his MACA Claim and it was served on the Defendant.

EVIDENCE AND DOCUMENTS RELIED UPON BY THE PLAINTIFF

1. In his first affidavit made 25 August 2023, Mr Job reported that he was first retained on 12 May 2022 and was instructed to take over carriage of both the Plaintiff's workers compensation claim and motor accident claim. Mr Job stated that he immediately sought the file of BPC. Because of a dispute concerning payment of BPC's costs, there was delay in his receipt of the file. It was ultimately received on 3 March 2022. Mr Job kept the Defendant informed of that delay in the obtaining of the file from BPC.
2. Mr Job's latest affidavit describes the nature and purpose of correspondence between COD, the Plaintiff, Ms Kiritheran and other parties. Of particular note is that nearly 2 years after the incident of collision, COD was, in October 2018, still attempting to collect information from the Police concerning the motor vehicle accident. Mr Job's references to correspondence shows that the Plaintiff, with the assistance of his daughter, was responsive to actions requested by COD including, for example, the provision of authorities for the obtaining of information and the signing of documentation.
3. I note the following:

• On 22 August 2018, the Plaintiff emailed Ms Holt, Legal Clerk of COD, assisting Mr Dale, seeking an update by complaining that he had heard nothing from Mr Dale even though he had sent all of the forms required of him and he attached them again to his email.
• On 25 September 2018, Ms Holt made a file note recording that Ms Kiritheran telephoned requesting an update and for confirmation that COD had received the forms completed by the Plaintiff. Ms Holt responded that COD had not received the forms and instructions from the Plaintiff; and Ms Kiritheran responded that she had recent examinations but would be free the following Friday for a teleconference. Ms Holt identified information not then received as the completed Medicare Claims History Statement, page 10 of the Claim Form signed by the Plaintiff, and page 3 of the GIPA Application signed by the Plaintiff. Ms Kiritheran asked Ms Holt to email those documents and promised to return them completed the following day. Ms Holt did forward them.
• On 28 July 2019, Ms Kiritheran emailed COD noting that she had tried to call and asked for a return call after she had completed school at 3:00pm.
• On 2 March 2020, a COD file note recorded that an attempt to speak to the Plaintiff by telephone was responded to by a call back by a friend of the Plaintiff suggesting that COD speak with the Plaintiff's daughter.
• On 4 September 2020, the Plaintiff's daughter asked to speak to Mr Dale of COD, requesting that he provide an update on the file.
• On 27 October 2020, COD recorded by internal email that the Plaintiff's daughter had called wanting an update on the file.
• On 25 November 2020, COD provided advice to the Plaintiff in regard to a Work Injury Damages Claim and enclosed a Costs Disclosure and Agreement. Nothing in the documents indicate that the Plaintiff ever instructed commencement of a Work Injury Damages Claim.
• COD did not provide advice in regard to, or in fact progress, the Plaintiff's MACA rights of claim.

1. I have reviewed the COD documents to which I was taken to by counsel during argument. It is not necessary to review the MBL documents, the common ground being that MBL did not ever contemplate or instruct the Plaintiff in regard to the making of a claim under MACA but rather proceeded only in regard to his workers compensation rights. COD had carriage of the matter from 15 February 2018 and what is apparent from the documents annexed to Mr Job's affidavit of 1 November 2023 is that whereas COD did advise the client on 20 June 2018 (this passage of the relevant email is quoted above) of the need to complete a Claim Form, COD was in fact confused as to which legal avenue for damages should be pursued on the Plaintiff's behalf. Mr Dale's letter to the Plaintiff, dated 1 May 2018, advised in relation to a Work Injury Damages Claim and the need for there to be a whole person impairment assessment of 15% or more in order for them to discuss the bringing of that claim. Nothing in that three page letter of advice referred to proceeding for damages under MACA.
2. Whilst the Plaintiff, with the assistance of his daughter, complied with COD requests for authorities and information, on 6 July 2018, one month after that letter of advice concerning lodgement of a Claim Form, COD wrote to WIRO requesting funding for bringing a lump sum workers compensation investigation.
3. The correspondence shows that the Plaintiff, with the assistance of his daughter, responded to COD's requests. It was not until 31 October 2018 that COD wrote to NSW Police in regard to the Plaintiff's workers compensation claim, "and a potential Motor Vehicle Accidents" Claim, requesting information and documents. On 7 November 2018, NSW Police responded. On 26 November 2018, Ms Kiritheran telephoned Ms Holt, Legal Clerk of COD, and after informing of the Plaintiff's recent surgery, confirmed that he still wanted to look "into his superannuation claim". On 2 April 2019, NSW Police informed COD that the GIPA Application had not been made within time and was deemed refused.
4. On 15 April 2019, COD forwarded a letter noting that they had provided some preliminary advice about a potential total and permanent disability claim under the Plaintiff's superannuation policy.
5. On 6 December 2019, COD wrote to the Plaintiff following Dr English, by Report dated 2 October 2019, having assessed the Plaintiff's whole person impairment at 19%. The letter advised that this entitled the Plaintiff to a lump sum of $46,610 and workers compensation, and otherwise as to the cessation of the Plaintiff's entitlement to weekly compensation on 21 November 2021. The letter then advised the Plaintiff of an entitlement to Work Injury Damages consequent of negligence of his employer which might be available on investigation of the maintenance of the truck about which there did "not appear to be any current evidence". The letter asked the Plaintiff for evidence suggesting the truck he was driving might not have been properly maintained and serviced. Importantly, the letter advised: "Please note that any claim in negligence against your employer is subject to a three year time limitation period which in your case expired on 21 November 2019. Time can be extended in work injury damages claims provided you can provide reasonable and detailed explanation for the delay."

THE STATUTE AND PRINCIPLES OF LAW - LATE CLAIM FORM

1. There is no dispute that the Claim Form was filed outside of the period of six months stipulated by s 72 MACA. The Claim Form was served on the Defendant just short of 4.5 years late. The relevant legislation is ss 66(2) and 73 of MACA: "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." … "73 Late making of claims … (1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a "late claim" ) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer. (2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless-- (a) the insurer has lost the right to reject the claim on the ground of delay, or (b) the Commission has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (4) The insurer loses the right to reject a late claim on the ground of delay if the insurer-- (a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or (b) does not, within 2 months after receiving an explanation for the delay, reject the explanation. (5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay. (6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay. (7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim. (8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made. Note : The combined effect of sections 72 and 73 is as follows-- A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided. Section 96 provides that a dispute about whether a late claim can be made may be referred to the Commission."
2. In the guideline judgment Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408, Allsop P (Spigelman CJ, Campbell, Macfarlan and Young JJA agreeing) explained that the words "full and satisfactory explanation" which appear in the first sentence of s 66(2) and in s 109(3)(a) MACA, do not mean that the word "claimant" has a broader meaning than that the claimant is responsible for providing the explanation, and that the meaning of "full" in s 66(2) should be understood in the context of the purpose of the provision, "to enable the Court to evaluate the reasons for the delay. Thus all relevant information to that end is required.": at [55] - [57]. The word "full" does not call for perfection, for prolix, or for burdensome recounting of every moment that has elapsed. S 66(2) MACA requires an explanation for the delay from the date of the accident: at [104].
3. In Nominal Defendant v Browne (2013) 64 MVR 214; [2013] NSWCA 197, Basten JA (Barrett and Gleeson JJA agreeing) said that in a case, such as this, for the purposes of s 73 MACA, the explanation is required to cover the period from the date of the accident until the date of the motor accident claim: at [16]. In this case, the Claim Form was served on the Defendant on 6 April 2021 and the period which is the subject of explanation commenced 21 November 2016.

Consideration

1. In short, the explanation given by the Plaintiff for that delay is that he was never advised by his representatives, MBL or COD, and did not know that he might have a claim for damages under MACA until receipt of the COD email on 20 June 2018, which advised that the Claim Form had to have been lodged within six months of the accident and that in order to progress his claim he would be required to provide "a full and satisfactory explanation for the delay and seek leave to continue with [his] claim." That advice related to full and satisfactory explanation for lateness of service of the Claim Form. The advice did not describe what was meant by the words "leave to continue with your claim." To the hypothetical, reasonable person in the position of the Plaintiff on 20 June 2018, those words did not say anything about the commencement of court proceedings or a limitation period pertaining to filing of a Statement of Claim.
2. Importantly, I was not referred to any evidence from the files of MBL or COD of advice in regard to, or of the Plaintiff's knowledge of, his right to pursue a claim for damages under MACA prior to the 20 June 2018 email. The six month period for service of the Claim Form in compliance with s 72 MACA expired on 21 April 2017. His affidavit evidence is that he did not know of the s 72 MACA limitation period prior to 20 June 2018. He was not cross examined to the contrary.
3. The affidavit evidence of the Plaintiff and of his daughter Ms Kiritheran, upon which they were not cross examined, is that from 20 June 2018, with her assistance, the Plaintiff complied with all steps required of him by COD as he trusted them to progress his claim under MACA and that from his delivery of a Claim Form to COD on about 24 September 2018, he understood that COD were progressing that claim.
4. The uncontested affidavit evidence is that the Plaintiff was not aware that his Claim Form had not been served and that COD had not progressed his MACA claim until being informed of those facts by BPC on 5 February 2021, following which the Claim Form was served on the Defendant on 6 April 2021.
5. My above analysis of the COD and BPC file documentation finds the Plaintiff's disclosure of relevant facts which corroborate his explanation for the delay of service of the Claim Form, particularly because it shows that without advising the Plaintiff or obtaining instructions from him, COD permitted the delay to continue whilst it focused on an alternative claim for Work Injury Damages.
6. For these reasons, in my opinion, the Plaintiff has provided a full explanation for his non-compliance with s 72 MACA by late filing of his Claim Form. Specifically, I am satisfied that he has given a full account of all relevant conduct and actions including his knowledge and belief from the date of the accident to the date of providing the explanation for the purposes of ss 73(1), (5) and (7) MACA.
7. The Plaintiff's explanation can only be satisfactory if the hypothetical reasonable person in the position of the Plaintiff would have failed to have complied with the duty to serve the Claim Form within time or would have been justified in experiencing the same delay.
8. I commenced these reasons with a description of the Context in which this late claim is brought by the Plaintiff, of his suffering the post collision sequela of significant and painful long-term treatment, his suffering serious Post Traumatic Stress Disorder and Major Depressive Disorder such that his ability to concentrate has been assessed by his treating psychiatrist, Dr Storor, as his experiencing difficulty planning or even following a television program. These injury-caused disadvantages were layered on top of him also suffering the difficulties presented by his cultural differences, lack of understanding of the Australian legal system, and such poor command of the English language that he required the assistance of his teenage daughter to deal with his lawyers. Indeed, the documents of each of the law firms MBL, COD, and BPC, show that his lawyers communicated with Ms Kiritheran and even left voicemails on her phone during school hours.
9. The words "position of the claimant" in the objective impressionistic assessment required under s 66(2) MACA of whether or not that full explanation is a satisfactory one, includes taking into account all of those circumstances of disability and cultural differences whilst the Plaintiff maintained trust in his legal representatives to progress his claim under MACA: Walker v Howard (supra) at [55] - [56] per Allsop P (Spigelman CJ, Campbell, Macfarlan and Young JJA agreeing); and further comment by Young JA at [136] - [152].
10. I find for the purposes of s 73 MACA that the Plaintiff's explanation is satisfactory.

THE STATUTE AND APPLICATION OF PRINCIPLES - SECTION 109

1. There was no dispute, nor could there be, that lodgement of the Statement of Claim on 22 May 2023 fell well outside the three year limitation period provided for in s 109(1) MACA. Neither party contested for a precise calculation of the period of the delay after allowing for the considerations within s 109(2) MACA. s 109 MACA does not extinguish the Plaintiff's right to commence proceedings but rather postpones the Plaintiff's right to initiate proceedings: Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 at [35]. Particularly bearing in mind that the Context facts establish a significant impairment of the Plaintiff's opportunity, or the opportunity of the hypothetical reasonable litigant in his position, to have prosecuted his action beyond reliance upon promptly retained and continued representation by solicitors, without more from either party, it does not occur to me that the arguments raised by the parties must succeed or fail according to a refined determination of the actual delay after consideration of s 109(2) MACA. Pursuant to s 109(2) MACA, time does not run from the time the claim was referred to the Motor Accidents Authority for assessment and does not run until two months after the issue of the certificate of exemption. I proceed on the bases that the delay was not more than 3.3 years, the proceedings having commenced 6.5 years post injury: see Dijakovic v Perez (2015) 71 MVR 334; [2015] NSWCA 174 per Gleeson JA at [80]; Leeming JA at [129] - [131] (McCallum J agreeing).
2. s 109 MACA provides (so far as is relevant for determination of this case) 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 Commission 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." …
3. s 66(2) MACA and the above referred to principles of law apply to the impressionistic assessment of "full and satisfactory explanation" required by s 109(3)(a).
4. The Defendant, during oral submissions, focused on delay from the date on which COD were instructed to the present. COD represented the Plaintiff between 15th February 2018 and February 2021. Whilst reference was made to the records of BPC, who had carriage of the Plaintiff's claims between February 2021 to May 2022, no substantial complaint of delay in fact by the Plaintiff was advanced in the Defendant's oral argument during the BPC period and to the present. The argument was made on the basis that delay continued. The relevant delay for the purposes of s 109 MACA, is, at most, between 21 November 2019 and 22 May 2023, a period of three and half years.
5. In written submissions, the Defendant put that the Plaintiff's explanation is not full, in the following general terms, before asserting specific deficiencies. The heart of the general proposition, was not that there was any gap period in the Plaintiff's evidence or in his daughter's evidence dealing with when or what the Plaintiff was told of limitation periods; but rather, and in the broadest of terms, that it was not enough for the Plaintiff to state, as he did in his affidavit (particularly at [109] to [111]), that he did not have the required understanding of limitation periods, steps in proceeding, consequences of failing to take those steps and was confused. The Defendant pressed that in the circumstances of that generalised nature of explanation, even in circumstances where the whole of the files of all solicitors were produced, it was incumbent upon the Plaintiff to rely on affidavit evidence of his solicitors, or in the event that they did not willingly provide that evidence, then to subpoena them. The Defendant orally submitted that there should be evidence of Mr Dale, the responsible solicitor at COD, concerning his unilateral abandonment of the claim under MACA.
6. Whilst the Defendant agreed that the Plaintiff does not own his solicitor's delinquency and is entitled to rely on his solicitor to prosecute his cause of action, the legislation does not excuse the Plaintiff from calling evidence of his solicitors to explain their conduct. Specifically, it was put, as the focus of oral argument was mainly upon the period of representation of the Plaintiff by COD, that the Plaintiff needed to put on evidence of Mr Dale to give a full and satisfactory explanation of what occurred after his 20 June 2018 email to the Plaintiff (quoted above), which email was sent before the expiration of the three-year limitation period. It was put orally that the "real issue" is that there is no explanation by those who advised the Plaintiff. In written submissions, the Defendant put: "14. In the overall sense, it is difficult to discern what the Plaintiff's general explanation actually is for the substantial delay in lodging his claim form. He appears to be suggesting that his previous lawyers (particularly Maurice Blackburn and Carroll & O'Dea, but also Beilby Poulden Costello to some extent) are to blame, at least in large part, both in terms of the advice offered and their conduct. His explanation is not assisted by the fact that numerous documents have simply been annexed to the affidavit evidence upon which he relies without any further comment or explanation. 15. At a high level, the Court is thus entitled to find that the explanation cannot be regarded as full given such deficiencies. Having said that, when one turns to and looks for the detail of the explanation being advanced by the Plaintiff, such deficiencies become even more apparent."
7. In the Plaintiff's Statutory Declaration made 16 September 2021, the purpose of which was to provide a full and satisfactory explanation for late lodgement of the Claim Form, and not for late commencement of proceedings, the Plaintiff explained that during his representation by COD he was not aware of the firm's pursuit of a Work Injury Damages Claim and assumed that his MACA claim was being pursued, and on those bases, he did not know that COD had abandoned his MACA claim. He understood from COD advices that it was necessary for his injuries to stabilise so that his "claim" could be pursued, as the "claim" would need to be made on a "once and for all basis". That claim was understood by him to be his claim under MACA. It was not until BPC informed him of the fact in 2021, that he understood that his MACA claim had not been progressed by COD.
8. The affidavit of his daughter Ms Kiritheran corroborates those facts. I have observed that there is nothing in the documents of the solicitors' files to which I have been taken by counsel for the parties, which is contrary to those facts. At [46] of his affidavit, the Plaintiff deposed that after receiving the 20 June 2018 letter from COD advising only in relation to lateness of the Claim Form, in a telephone call during which he was assisted with translation by his daughter Ms Kiritheran, he was asked if he had ever been advised of, or was aware of, the time requirements to lodge a motor accident claim. He informed the solicitor that he had not been previously advised of the time requirements. He deposed that this conversation caused him some concern, "However, I was advised that the form could still be lodged outside of these timeframes and that an explanation for delay could be provided to the insurer." By that evidence in his affidavit (at [46]), the Plaintiff deposed that he was aware of time limits but understood it to be in relation to time having passed for lodgement of the Claim Form.
9. I have quoted from the file note made by Mr Dale of COD, dated 3 July 2018, regarding a telephone conversation on that date. Whilst it records the enquiry made of whether the Plaintiff had been advised of "the three year time limit", and his answer that no one had advised of that, and that it was the first time he had heard about the time limit; nothing in the note refers to the subject of the three year time limit as being for the commencement of proceedings for damages pursuant to MACA. After having made that disclosure at [46] of his affidavit, the above quoted paragraphs ([109] - [111]) put bluntly that he consulted his solicitors from after the accident and relied on their advice, at times with the difficulties of the language barrier, understood that his claims were being managed by his legal representatives, and that prior to the 20 June 2018 letter he had no knowledge of his potential rights under MACA and after that date he did not understand the time limitation issues in relation to the lodgement of the claim or for commencing proceedings.
10. In submissions, counsel for the Defendant focused on [109] - [111] of the Plaintiff's affidavit, and put that the Plaintiff did not succinctly state that he was not advised of, or was otherwise aware of, the three year limitation period for the commencement of proceedings.
11. The Plaintiff's evidence is that he relied on legal representatives to progress his claim according to law for the whole of the period of delay, including the period after mid-2018 when he received formal written advice of the lateness of service of his Claim Form, and received, only by telephone, an enquiry from Mr Dale of COD as to whether or not he had been informed of a three year limitation period but without more concerning that limitation period. He deposed (at [110]) that he was confused but trusted in his lawyers to progress his claim under MACA according to law.
12. The Defendant submits that the evidence does not satisfy the requirement of full and satisfactory explanation required for the exercise of my discretion in favour of granting leave to commence proceedings out of time under s 109 MACA. Counsel for the Defendant pressed that the Plaintiff's claim that his solicitors had not in fact explained the three year limitation period for the commencement of proceedings is something which required evidence from the solicitors by affidavit or, if necessary, oral evidence following subpoenaing of those solicitors. Effectively, the Defendant submits that the Plaintiff's disclosure in his affidavit of lack of knowledge and of confusion is too vague, particularly where he was being advised by solicitors who were experts and specialists in personal injury law. The effect of what was argued by the Defendant is that those solicitors could say what advice was given and whether or not it was anything more than what is apparent from the solicitors' files. This was the crux of the Defendant's submission that a full and satisfactory explanation for the purposes of s 109(3)(a) MACA was not given.
13. Each case is to be determined on its own facts because the determination of whether or not a full and satisfactory explanation has been given is an evaluative and impressionistic assessment required of the court. The required assessment (as before - s 66(2) MACA) is on the basis of an objective standard of the hypothetical person standing in the claimant's position as to whether or not the delay which has occurred was reasonably justifiable. That said, in Stein v Ryden (2022) 102 MVR 309; [2022] NSWCA 212, the Court of Appeal collected, with reference to Walker v Howard (supra), Karambelas v Zaknic (No 2) (2014) 69 MVR 127; [2014] NSWCA 433, Rahman v Al-Maharmeh (2021) 95 MVR 394; [2021] NSWCA 31, and Dijakovic v Perez (supra), the relevant principles which I collect in a summary form as follows:

• It is for the reason that the Court must evaluate all of the reasons for the delay and decide whether they are full and satisfactory that the explanation must be full and next, the Court must determine that a reasonable person in the position of the claimant would have been justified in experiencing the same delay.
• Reference to the issue of delay does not mean that the explanation is required to include the actions, knowledge, and belief of any solicitors who acted for the claimant, as opposed to the claimant himself.
• Evidence as to why the claimant's solicitors failed to implement his instructions to progress his claim and commence proceedings is not required for a full and satisfactory explanation other than for the purposes of satisfying the claimant's obligation to provide the explanation.
• A more elaborate explanation from solicitors as to why they failed to act will not be relevant if it does not contribute to an evaluation of whether or not the claimant's application is a satisfactory one.
• It is sufficient that some reasonable claimants in the claimant's position would have experienced the same delay as the claimant.
• It is a matter of significance that the claimant is not cross examined and the propositions of deficiency of explanation are put when, as in this case, he has deposed to the circumstances of advice as given by lawyers, in whom he trusted for the progression of his claim according to law, which would have justified a reasonable person in his position experiencing the same delay given his reliance upon his lawyers and his not being, in fact, aware of the requirements of the limitation periods.

1. I am, for the purposes of s 109 MACA, satisfied that the Plaintiff was not required to call the evidence of his solicitors for more elaborate explanation of the circumstances in the face of his evidence, and in the circumstances of the Context facts of the significant disability he experienced in the bringing of his action. For the purpose of s 109(3)(a) MACA, I am satisfied that the Plaintiff has provided a full and satisfactory explanation to the Court for the delay because a hypothetical reasonable person in his position would have failed to comply with those limitations of time and would have been justified in experiencing the delay.
2. The Defendant concedes the total damages of all kinds likely to be awarded to the Plaintiff, if the claim succeeds, will be not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 MACA as at the date of the relevant motor vehicle accident: s 109(3)(b) MACA.
3. In the exercise of my discretion, the Plaintiff is entitled to a grant of leave pursuant to s 109(3) MACA to commence proceedings by way of his Statement of Claim filed 22 May 2023.

FURTHER DEFENDANT SUBMISSIONS

1. For completeness, I further refer to specific Defendant Written Submissions (MFI 2) made in support of its application:

• As to [14], the Plaintiff does not "blame" MBL, COD, or BPC and nor is that the required focus. That the Plaintiff's explanation on oath was not challenged does not make relevant what was in the mind of his legal representatives. True it is that a "full account of the conduct" referred to in the first sentence of s 66(2) MACA is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on his behalf, so far as it is relevant to the delay; however, that does not mean that the explanation is required to include the actions, knowledge, and belief of the solicitors as distinct from the claimant. It is the claimant who must (and in my opinion has) provide the satisfactory explanation for his delay. The Context circumstances of his considerable disability, as a member of the community seeking prosecution of his rights, his promptness in retaining legal representation and maintaining legal representation for the whole of the relevant period, and that following production of the whole of the documentation of the files of his legal representatives, evidence contrary to his explanation was not put; causes me to accept his lack of awareness of the limitation of time requirements and consequences, and that he trusted in his lawyers. This satisfaction is more easily reached because neither the Plaintiff, nor his daughter, were cross examined. I am satisfied that the requirements of s 66(2) MACA have been met.
• As to [17] and [18], the "deficiencies" in the Plaintiff's explanation asserted by the Defendant are answered as follows: (a), (b), (d), (e) and (f): The Defendant chose not to cross examine the Plaintiff in relation to his affidavit evidence that he did not understand the relevant limitation periods, was confused, and trusted that his lawyers were progressing his claim under MACA. The note by Mr Dale of COD, made 3 July 2018, recorded the Plaintiff's confirmation that he had never been advised of a three year time limit and that Mr Dale raising such enquiry by telephone was the first he had heard of it. Even then, content of that note does not describe the steps required for prosecution of the MACA claim, consequences of delay in achieving any steps in the MACA claim, and specifically anything to do with the issue of proceedings in the MACA claim. The point made by the Defendant was rejected as a general proposition in Stein v Ryden (supra) at [22] - [26] and [40]. (c): The Plaintiff's uncontested evidence is that MBL only advised him of rights at workers compensation and nothing of rights under MACA. In oral submissions, the period during which MBL represented the Plaintiff was not pressed by the Defendant as a subject of its complaints. (g) (and [26]): Whereas the Defendant submits that the Plaintiff's changing of law firms on three occasions "remains largely unexplained"; in my view, that action was consistent with the strong evidence of the solicitors file notes, showing that the Plaintiff, with the assistance of his daughter, pursued law firms about general delay, displaying him as a diligent client. His awareness of general delay does not infer an awareness of the effluxion of time against serious consequences of limitation periods at law.
• As to [29] - [37], these submissions have been addressed above as to the requirements of s 66(2) MACA. In addition, the Defendant during argument did not press the requirement for explanation of delay during carriage of the matter by BPC or the Plaintiff's present lawyers. In the absence of specific complaints in regard to that period, the Plaintiff's unchallenged affidavit evidence, in my opinion, provides full disclosure and satisfactory explanation for delay, and again, this is so particularly given the whole of the files of the Plaintiff's solicitors have been produced to the Defendant.

ORDERS

1. I make the following orders: 1. The Defendant's Notice of Motion filed 19 July 2023 is dismissed. 2. Pursuant to s 109(3) Motor Accidents Compensation Act 1999 (NSW), the Plaintiff have leave to commence and continue these proceedings. 3. The Defendant pay the Plaintiff's costs of the Notice of Motion.

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