4 March 2002
KEVIN LANGLANDS v DAMON SIMOVIC
Judgment
1 HANDLEY JA: This is an application for leave to appeal from a decision of Hogan DCJ given on 17 July 2001. His Honour had before him an application under s 52(4) of the Motor Accidents Act for leave to commence proceedings in respect of a motor accident more than three years after the date of the motor accident to which the claim related.
2 The accident occurred on 30 March 1997. The plaintiff was a front seat passenger in a motor vehicle driven by the defendant which was proceeding along a public street at Tuncurry. The driver lost control of the vehicle which collided with a power pole and the vehicle then turned over. An ambulance attended the scene of the accident and the plaintiff was treated for left sided lower back pain and chest pain, inferentially in a public hospital. The following day he returned home but continued to experience pain. The three year limitation period provided in s 52(4) expired on 30 March 2000.
3 The claimant consulted his present solicitors following the suggestion of a general practitioner, Dr Dunlop, he consulted on 6 September 2000. He saw his present solicitors on 12 September and received correct advice about his position and the need to seek the leave of the Court before he could bring proceedings in respect of his injuries.
4 The solicitors had to make a number of inquiries before they could make the application. They wrote to the driver of the vehicle on 13 and 20 September. This correspondence, presumably, was referred to the driver's third party insurer who wrote on 18 October 2000 to the claimant's solicitors stating:
"Please provide a signed statement from your client giving a full and satisfactory explanation for the delay in making this claim. The explanation should give a full account of your client's conduct, including their actions, knowledge and belief from the date of the accident until the date of providing the explanation. The explanation is not satisfactory unless a reasonable person in the position of the claimant would have failed to comply with s 43 or have been justified in experiencing the same delay".
5 This was a reference to the definition of "full and satisfactory explanation" in s 40(2).
6 The letter was sent in relation to the requirement under s 43 for a claim to be given to the third party insurer within six months of the accident but the same requirement arises under s 52 in relation to a failure to commence proceedings within three years.
7 A written explanation was provided by the claimant's solicitors to the insurer, on 19 December 2000, which provided information identical in substance to that in the affidavit of the claimant in support of the application for leave to commence proceedings out of time. The insurer rejected the explanation and on 28 May 2001 a notice of motion seeking an extension of time was filed on behalf of the claimant.
8 The proceedings came before Hogan DCJ who refused the application. His Honour thought that an explanation had been given which was as full as the claimant could give and was credible. The question he considered was whether it was satisfactory in the light of the time restraints in the Act. His Honour thought that the explanation was not satisfactory in that context and refused the application. The claimant has sought leave to appeal to this Court.
9 The case is such as to attract the sympathy of the Court, bearing in mind the plaintiff's education history, the material in his cross-examination and the medical evidence. Nevertheless, the Court must apply s 52 of the Motor Accidents Act in its form at the relevant time. Section 52(4B) provides:
"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 twenty-five per cent of the maximum amount that may be awarded for non-economic loss...".
10 The primary Judge found that the claimant passed the threshold of twenty-five per cent in subparagraph (b) and although we have not heard Mr Cutler for the opponent, in view of the plaintiff's work and educational history, and the nature of the injuries to his back, it is not hard to see why the Judge was satisfied on this question.
11 It remains, however, to consider the other threshold question which is whether the claimant has provided a full and satisfactory explanation for the delay.
12 The explanation outlined in the claimant's affidavit included in para 14 that, having seen an advertisement in "The Wollongong Advertiser", he telephoned a solicitor in Wollongong on some unspecified date during 2000. The solicitor asked the claimant for further information and then followed up with a phone call to ascertain whether the claimant had collected it. The paragraph continued:
"At this time the solicitor advised me that I had only six months in which to bring a claim. On that basis I decided not to proceed any further. The solicitor did not advise me that I was able to bring a claim more than six months following the accident or that I was able to make an application to the Court seeking leave to commence proceedings out of time".
13 Later that year the claimant saw Dr Dunlop and was led to consult his present solicitors. The matter is further dealt with in paras 15 and 17 of his affidavit. Para 15 deals with the advice that the claimant received on 12 September when he consulted his present solicitors and is not an explanation of the delay. Para 17 says:
"Prior to consulting Mr Chadwick on 12 September 2000 I was not aware that I was able to bring a claim more than twelve months after the accident or that it was open to me to bring a special application to the Court requesting that leave be granted to commence legal proceedings out of time".
14 There is no reason to doubt the truth of everything that the claimant has said in his affidavit and in his earlier statement to the insurer. However, the claimant does not state, either in his statement or in his affidavit, what his state of mind was and his relevant beliefs were prior to consulting his present solicitors. We are not told whether he knew in a general way that he could bring proceedings against the driver of the motor vehicle but did not think that he had a case on the merits. We are not told whether he was not aware that he could bring proceedings against the driver. If he was aware that he could bring proceedings against the driver and thought he had a good case, we do not know whether the explanation for the delay related to his financial position or his belief that the injury would get better over time or whether he thought that he had more time to bring proceedings and intended to get around to it sooner or later.
15 Dr Morrison invited us to draw inferences in these matters to fill in what, clearly, are gaps in the explanation. In my view when the Act requires a full and satisfactory explanation to be given for the delay it is not appropriate, except on the margin, for the Court to draw inferences. Here, there is really no explanation at all for the delay between the date of the accident and the date that the claimant telephoned the solicitor in Wollongong in response to the advertisement. We just do not know why the claimant did nothing for approximately three years during the period provided in the statute within which proceedings must be commenced.
16 Regretfully, therefore, I conclude that the claimant failed to meet the threshold requirement in s 52(4B)(a) and accordingly leave to appeal should be refused.
17 The orders I would propose are leave to appeal refused. Claimant to pay respondent's costs of the summons.
18 BEAZLEY JA: I agree.
19 IPP AJA: I agree.