Larry Dawson v State Of New South Wales

Judgment 1Larry Dawson was an inmate at St Heliers Correctional Centre in the custody of the Department of Corrective Services on 12 January 2009 when he suffered injury. At the time he was working under the direction and control of prison staff at the Muswellbrook cemetery. He claimed that he suffered serious injury to his right foot, right ankle, knee, hip, groin and low back. A statement of claim was filed on 6 February 2012. 2The defendant applied by motion on 5 March 2012 for an order dismissing the claim because the plaintiff failed to comply with s 26BA of the Civil Liability Act 2012. The Civil Liability Legislation Amendment Act introduced into the Act Part 2A - Special Provisions for Offenders in Custody. The amending Act was proclaimed on 12 November 2008 and its provisions commenced on that date. 3Relevantly to the plaintiff's claim, s 26BA obliged him to give the defendant written notice within six months of the date of his injury, specifying the date of the injury, describing the injury in ordinary language and stating that the incident may give rise to a claim against the defendant. 4The defendant relied on s 26BD of the Act to apply to have the proceedings dismissed on the grounds of failure to comply with the notice requirement. 5Section 26BA(3) compels the court to dismiss the proceedings unless it is satisfied that s 26BA was complied with or that the plaintiff has a full and satisfactory explanation for non-compliance with the notice requirements and that the required notice of the incident was given to the defendant within a reasonable period in the circumstances. 6The plaintiff was injured on 12 January 2009; he remained in custody until 6 October 2009. By then the six months notice period had expired. On 20 November 2011 he consulted a solicitor, who took instructions and commenced investigations into the circumstances of his injury. The plaintiff's solicitor briefed counsel on 21 May 2010, who immediately alerted the solicitor to the provisions of Part 2A of the Act. On 3 November 2010 the solicitor gave notice to the New South Wales Department of Corrective Services in terms required by s 26BA. On 27 July 2010 statutory declarations of the plaintiff and his solicitor at the time were provided to the Department of Corrective Services. 7On 24 December 2010 the Crown Solicitor advised that he was acting in the matter. The plaintiff's solicitor continued to prepare the matter for hearing. It was not until 6 May 2011 that the Crown Solicitor advised the plaintiff's solicitor that the defendant did not consider the explanation to be satisfactory and that if proceedings were commenced it proposed to apply to have them dismissed. On 4 July 2011, in response to a request for the reasons for rejecting the explanations, the Crown Solicitor advised as follows: My client department says that your client's explanation for his delay in giving notice of the incident giving rise to his claim is unsatisfactory because he did not give any such notice until six months after the six month limit provided for by s 26BA of the Civil Liability Act had expired. My client department considers that the giving of notice some 16 months after the date of the incident is too long after the event and an unreasonable delay given the provisions of the legislation. To some extent your client also seeks to explain the delay in giving notice due to the failure of his solicitor to be aware of and properly advise him of the notice requirement, which my client department also does not consider to be a satisfactory explanation. 8In pursuing the motion the defendant maintained that the plaintiff failed to provide a full and satisfactory explanation and that the notice was not given within a reasonable period. 9Summarising the plaintiff's explanation, it was as follows. He was injured on 12 January 2009, treated in hospital and at a medical centre and that his injuries included lacerated and fractured toes that were treated with morphine and other pain-killing medication. The next day a prison officer asked him to provide information for an accident report form. The plaintiff said at the time he was suffering from the effects of morphine given to him for pain relief. The prison officer told him that the "worker's compensation forms" would be completed the next day. On 14 January 2009 the plaintiff provided information to complete what he understood to be a worker's compensation claim form. The prison officer told him that the accident report, worker's compensation form and the doctor's certificate were to be sent to Sydney. From these statements he understood that he was covered by worker's compensation. The prison officer concerned provided no evidence to this court to contradict this part of the explanation. 10The plaintiff detailed his efforts to recover from his injuries while in custody, where he dealt with infection, pain and discomfort and an awkward gait. He was released from gaol on 6 October 2009 believing that he remained entitled to worker's compensation to meet treatment expenses. No officer of the Department of Corrective Services at any stage informed the plaintiff that he should give notice of his claim in the form required by s 26BA(3). He was not given copies of the forms that he signed. 11 On release, the plaintiff attempted to resume his trade as a tiler. This was an occupation that involved heavy lifting and it required the capacity to squat, kneel, manage uneven ground and other building site conditions. The plaintiff was unable to perform this work. 12On 28 October 2009 he contacted WorkCover and learned that no claim was lodged and that he was not entitled to worker's compensation. The plaintiff consulted a solicitor on 20 November 2009. The solicitor told him he had three years within which to commence proceedings but said nothing of the requirement to lodge notice of the claim. The plaintiff said he was first told of this on 7 June 2010. The plaintiff said he continued to suffer from significant pain and disability. The plaintiff's solicitor at that time provided a statutory declaration in which he stated that he was unaware of the requirement to give notice of claim and that he advised the plaintiff that he needed to secure information and reports and wait until his condition stabilised before commencing proceedings. He therefore did not understand that any step needed to be taken urgently. On advice from counsel he immediately issued the required notice. 13The solicitor who was acting at that time became ill and a number of his personal injury files were taken over by the plaintiff's current solicitor in September 2011. The plaintiff's current solicitor provided an affidavit of events that occurred between July 2010 and the commencement of proceedings in January 2012. They included the process of securing assessment of the plaintiff's whole person impairment through the processes of the Workers Compensation Commission. This was ultimately determined to be 27%. The plaintiff also supplied the particulars sought by the defendant. 14The plaintiff's solicitor also provided details of a telephone conversation with the plaintiff on 15 March 2012 in order to respond to the plaintiff's application to dismiss the proceedings. The plaintiff is currently resident in Bali, Indonesia. 15The plaintiff confirmed that he was not informed by any officer of the Department of Corrective Services or any inmate of the requirement to give notice of claim. The plaintiff also told his current solicitor that he spoke by telephone from gaol to a solicitor at Whitelaw McDonald. This telephone conversation took place after he had completed the forms presented to him by the prison officer at St Heliers Correctional Centre because he wanted to make sure that his worker's compensation rights were in order. The solicitor told him that they were and that he had three years within which to bring a claim. 16The defendant argued that by analogy I should adopt the definition of full and satisfactory explanation as it appeared in the Motor Accidents Compensation Act 1999, that is, that to be satisfactory, the explanation must contain a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident to the date of the provision of the explanation and that the explanation should not be accepted as satisfactory unless a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. If it applies, therefore, there are two aspects to be satisfied. 17It was established in Russo v Aiello 215 CLR 643 that the defendant bears the onus of establishing that the application is not full and satisfactory. I considered this principle applied even if the Motor Accidents Compensation Act definition were not to be adopted. 18There were, however, significant differences between the two provisions. The requirement of s 26BD(3)(a) is that the court be satisfied that the plaintiff has a full and satisfactory explanation for non-compliance with the provisions of s 26BA(3). I noted, therefore, that for the purposes of s 26BD(3)(a), the focus is on non-compliance with the section, that is, non-compliance with the requirement to give notice of a claim within six months of the date of the accident. The question of delay is dealt with in the second limb of that section where the court must be satisfied that the required notice was given within a reasonable period in the circumstances. 19There are two things to be said about this marked difference in emphasis. The first is that it was improbable that it was intended that the court apply the definition as it appears in the Motor Accidents Compensation Act. The second is that the full and satisfactory explanation is not required in the context of justifying a delay; the point made by Gleeson CJ in Russo v Aiello. 20The defendant argued that the explanation was not full and satisfactory for two reasons. Exhibits B and C on the application were the forms completed by the prison officer and signed by the plaintiff on 13 and 14 January 2009. It was argued that they were ostensibly not notices of claim for worker's compensation and there was no information from the plaintiff as to his true understanding of the nature of these forms. 21I disagreed with that submission. The plaintiff did not complete the forms, he provided information to allow the prison officer to complete them and he signed them. No evidence was provided by the prison officer to reject the plaintiff's contention that he was told that they were completed for the purposes of a worker's compensation claim. At the time the forms were completed, the plaintiff was in great pain and receiving pain-killing medication. The plaintiff was in custody for the whole of the six month period from the date of the accident. No-one advised him that he must give notice in the terms required by s 26BA. His unchallenged evidence was that the prison officer involved in the paperwork completed after the accident told him that he was completing a worker's compensation form to be sent to Sydney. 22There is no requirement in this legislation that the court be satisfied that a reasonable person in the plaintiff's position would be justified in complying with the requirements of s 26BA. Even if there were, in my view his explanation satisfied that requirement. 23The defendant's second concern was that the plaintiff only recently disclosed that he received legal advice whilst he was in gaol. The defendant was critical of the extent to which the discourse with that solicitor was disclosed. In my view it was sufficient. It confirmed that the plaintiff was concerned that his worker's compensation rights were protected. The solicitor he contacted assured him that they were and that he had three years within which to make a claim. It did not alter my conclusion that the explanation for his failure to comply with s 26BA was full and satisfactory. This was simply that the plaintiff remained ignorant of the requirement to do so. The plaintiff's belief that he had worker's compensation rights was confirmed by his conduct after his release when he contacted WorkCover to enquire about accessing those rights. I accepted, therefore, that he was genuine in his evidence that he was misled as to the nature of the forms that were completed. I accepted that his explanation was full and satisfactory. 24The second requirement of s 26BD(3)(a) is that the court be satisfied that the required notice was given to the Department of Corrective Services within a reasonable period in the circumstances. The section says nothing of the requirement that appears in s 43A(7) of the Motor Accidents Compensation Act that the court be satisfied that the claimant does not have a full and satisfactory explanation for the delay itself. It was simply a question of what was reasonable in the circumstances. 25In my view, this part of the section requires that the court be satisfied that notice of the incident was given to the Department within a period that rendered it reasonable to ask the Department to respond to the proceedings commenced in respect of the claim. Put another way, the issue was whether the Department was prejudiced to the point where it could not secure a fair trial by the period that elapsed before the required notice of the incident was given. This was not in issue on the application, nor could it have been. The Department had full details of the incident. It provided medical treatment for the plaintiff for nine months after the incident. It has since had opportunity for medical examination of the plaintiff. It has sought and been provided with particulars and the plaintiff's whole person impairment has been assessed. 26I did not consider the issue of the solicitor's error to be relevant to this issue. In the event that I was wrong in this conclusion, I did not consider that the solicitor's oversight of the requirement to give notice brought the matter within the area of debate in Ratko v Ratko [2003] NSWCA 219, where the issue was whether ignorance of the law could be relied on to justify an extension of time under the Limitation Act 1969. 27In Smith v Grant [2006] NSWCA 244, Basten J reviewed a number of decisions concerning the question of whether a full and satisfactory explanation had been provided in accordance with the provisions of the Motor Accidents Act 1988. He said, at [60]: The weight of authority under the 1988 Act in this court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings. 28He proceeded to apply those principles in dealing with the question of the quality of the explanation as defined in the Motor Accidents Compensation Act 1999. The plaintiff's explanation in that case was then judged against the question of what a reasonable person in the plaintiff's position would have done. The Court of Appeal held, at [64], that there was no reason to suppose that a reasonable person in her position would have been alert to the error made by her solicitor. 29The defendant in this case did not suggest that a reasonable person in the plaintiff's position would have been aware of his solicitor's oversight of the statutory requirement to give notice. I was satisfied, therefore, that in the circumstances of this case the required notice of the incident was given within a reasonable period.