Lawrence v Mills

District Court of NSW|2011-12-06|Before: Mr J

REASONS FOR Judgment 1The plaintiff was injured in a motor accident on 29 September 2004 when the vehicle being driven by the defendant collided with the vehicle he was driving. He commenced these proceedings for damages on 4 May 2011 alleging that the accident was caused by the defendant's negligence. 2The defendant filed a motion seeking dismissal the plaintiff's proceedings, contending that the plaintiff was not entitled to commence or maintain the proceedings due to delay, being the late claim and the late commencement of proceedings. The plaintiff filed a counter motion seeking the court's leave to proceed. 3The defendant contends that the plaintiff did not lodge his claim form until 20 June 2006, some 21 months after the accident. A claim in respect of injury received in a motor accident must be made within 6 months of the accident: s 72(1) of the Motor Accidents Compensation Act 1999 (the MAC Act) . If court proceedings are commenced on a late claim, an application may be made to have the proceedings dismissed, and the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay: s 73(5) and s 73(7) of the MAC Act . 4The plaintiff did not commence these proceedings until over 6 years after the accident. A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after a motor accident, except with the leave of the court, which must not grant leave unless the claimant: (a) provides a full and satisfactory explanation for the delay: s 109(3)(a) of the MAC Act ; and (b) demonstrates that the total damages of all kinds likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident: s 109(3)(b) of the MAC Act . 5A reference to a "full and satisfactory explanation" is dealt with in s 66(2) of the MAC Act , which provides: "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 providing of 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." 6The full account required by s 66(2) of the MAC Act is not limited to the claimant personally, without regard to those who acted on his behalf, in so far as that conduct was relevant to the delay: Walker v Howard [2009] NSWCA 408 at [72] and [106]. Nor is it limited to actions and it must include the knowledge and belief of the claimant: at [77]. 7The word "full" has been held to be a word that must be given its semantic significance, and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious: Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]. The explanation must address acts and omissions relevant to the delay, so as to enable the court to evaluate the reasons for the delay. 8The defendant says that the explanation provided for the plaintiff's delay is neither full nor satisfactory. He also says that the plaintiff has not demonstrated that the total damages likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the motor accident: s 109(3)(b) of the MAC Act . It was common ground that in this case 25% of the maximum amount that may be awarded for non-economic loss is $82,250.00 ($329,000.00 ÷ 4).

Likely total damages 9I will first consider whether the plaintiff has demonstrated that the total damages likely to be awarded are not less than $82,250.00. 10The heads of damage available to the plaintiff are past out-of-pocket expenses, future expenses, past and future domestic care and assistance, past loss of earnings, and future economic loss. Damages for non-economic loss are not awardable because the plaintiff has not satisfied the statutory threshold required before such damages may be awarded: s 128 of the MAC Act . 11The case made for the plaintiff on this issue was, in summary, as follows: It was agreed that the plaintiff is entitled to recover out-of-pocket expenses of $20,472.00. So far as the future is concerned it was submitted that there will be a need for ongoing medication and massage. It was conceded that the past loss of earnings sustained are not major, but that the plaintiff lost the opportunity to earn bonuses, and for promotion. For the future, it is alleged that the plaintiff is losing in the order of $10,000.00 nett per annum, and will be forced to retire sooner than he would otherwise have done, such that he is likely to be awarded a cushion of some $50,000.00 for future economic loss. Taken together, these various heads of damage will in total exceed the threshold amount of $82, 250.00. 12The defendant, on the other hand, submits that the medical evidence does not support any award of damages for economic loss, either for the past or for the future. Similarly, there is no appropriate basis for an award for domestic care. 13For his position, the defendant relies on the medical specialists qualified by his solicitors, who consider that the plaintiff suffered minor musculo-ligamentous injuries in the motor accident, the effects of which have substantially resolved. This opinion is supported by the Medical Assessor from the Medical Assessment Service (MAS), Dr Clive Kenna. Absent any ongoing disability, the plaintiff has suffered no diminution in earning capacity. 14The plaintiff relies upon the doctors who have treated him, and the specialist medical opinion of Dr Max Ellis, whose most recent report is dated 1 November 2010. In the opinion of Dr Ellis, the plaintiff suffered musculo-ligamentous contusion and aggravation of degenerative change in the neck and back. Consequent upon the back injury there are secondary effects in the plaintiff's lower limbs, referred pain and neurological deficits. Radiologically, there is a small disc protrusion at C6/7 in the cervical spine, desiccation or internal disc disruption in the lumbar spine at L3/4 and probably an inferior plate fracture at this level. 15Dr Ellis attributes these findings and the plaintiff's ongoing problems to the motor accident, noting that there had been no other relevant accident or injury and in particular no previous disability in the back or neck. 16As counsel acknowledged at the hearing, the determination of the extent of the plaintiff's ongoing disabilities and the causative role played by the accident fall to be determined on the medical reports. I did not have the benefit of cross-examination of any of the doctors, or any other detailed opinion on the question of causation. 17The assessment of the total damages likely to be awarded requires the plaintiff to demonstrate something more than an arguable case. On the other hand, he is not required to show that the damages will "more likely than not", exceed the relevant threshold. What he is required to prove is that that there is a "real chance" or a "real prospect" or that such may well be the situation: Sinclair v Darwich [2010] NSWCA 195 at [36]. 18The issue in this case, as presented to me on the medical reports, is whether there is a real chance the court will find that the plaintiff's ongoing complaints of pain and discomfort in the back and neck are, firstly, genuine, and secondly, a result of the motor accident. 19On the first question, there was nothing before me to suggest the plaintiff's complaints were other than genuine. 20On the second question, of causation, on the evidence before me and having regard in particular to the absence of any evidence of the plaintiff experiencing any significant prior problems in his spine, the issue is to be decided in the plaintiff's favour, the opinion of Dr Ellis being preferred to that of the other medical opinion. 21The extent of the plaintiff's complaints and their combined effect on his earning capacity since the accident and into the future, together with future medical treatment and domestic assistance he has required and will require, are clearly sufficient to warrant an award of damages in excess of $82, 250.00. 22I find, therefore that there is a real prospect that the total damages to be awarded to this plaintiff are not less than 25% of the maximum amount that may be awarded for non-economic loss, and the plaintiff has satisfied this requirement for a grant of leave to commence proceedings out of time.

Full and satisfactory explanation 23I now turn to consider whether the explanation provided for the delay was full and satisfactory. 24It was conceded on behalf of the plaintiff that, having regard to the wording of s 66(2) of the MAC Act , the period for which a full and satisfactory explanation is required is the whole of the time from the date of the motor accident to the date of giving an explanation that is both full and satisfactory: McNamara v Fitzgibbon [2005] 274 at [31] - [43]; Hickey Transport Pty Ltd v Gordon [2008] NSWCA 167 at [8]. 25I will consider firstly whether the explanation for the delay in making the claim was full and satisfactory. 26I will then consider whether the explanation for the delay in the commencement of the proceedings in this court was full and satisfactory.

The delay in lodging the claim form 27A claim form was only forwarded to the CTP insurer, AAMI Insurance (AAMI), on 18 January 2006. The insurer contended that the claim was incomplete in that it did not include a CTP Medical Certificate and the certificate was not provided until 20 June 2006. It seems that it was conceded, therefore, that notice of the plaintiff's claim was not given on 18 January 2006, but was only given when the relevant medical certificate was provided, on 20 June 2006. 28By a Certificate dated 28 September 2009, an Assessor from the Claims Assessment and Resolution Service (CARS) certified that the plaintiff could make a late claim in accordance with s 73 of the MAC Act . In his reasons the CARS Assessor concluded that he was satisfied the plaintiff had provided a full and satisfactory explanation for the delay in lodging his claim form. The assessment of the dispute by the CARS Assessor was, however, made pursuant to s 96(1)(a) of the MAC Act , and is not binding on the parties: Hayek v Trujillo [2007] NSWCA 139 at [47] - [50]. The plaintiff acknowledges that I am bound by that decision, such that the defendant's insurer is entitled to re-agitate the issue the issue before me. 29The accident in which the plaintiff's injuries were sustained occurred during a journey that entitled him to receive workers' compensation benefits. He made a workers' compensation claim, which he assumed "took care of everything". He did not seek legal advice until 18 October 2005 when he consulted his present solicitors, Brydens Law Office (Brydens). 30On that day he had a conference with a solicitor employed by Brydens, Ms Kha, when he learned, for the first time, that he was under a separate obligation to give notice of a claim to the CTP insurer of the other vehicle involved in his accident, in addition to his claim for workers compensation, and that notice was required to have been given within 6 months of the accident, namely by 30 March 2005. He would, therefore, have to make a "late" claim and provide a full and satisfactory explanation for the delay in making the claim. 31Ms Kha gave the plaintiff a claim form to complete "as best he can" and asked him to return it to Brydens. 32Subsequently, another solicitor at Brydens, Ms Mary Nguyen, took over the file. She noted that the plaintiff had not returned the claim form, and telephoned him on 6 January 2006. She explained to the plaintiff the urgency, and that the claim form needed to be lodged as soon as possible. He said he had 90% completed it and would send it back next week. She then wrote to the plaintiff on 9 January 2006, asking him to return the completed form urgently. 33On 17 January 2006 the plaintiff attended at Brydens and completed the claim form. The claim form was forwarded by Brydens to the CTP insurer, AAMI Insurance (AAMI), by letter dated 18 January 2006. 34In reply, AAMI advised Brydens, by letter dated 27 January 2006, that the claim form was incomplete, and asked for a CTP Medical Certificate. AAMI also noted that the claim form had been lodged after the 6-month period allowed by the MAC Act , and requested a full and satisfactory explanation for the delay in lodging the claim. 35The essence of the explanation proffered in respect of the period up until the end of January 2006 is that the plaintiff was unaware of his legal obligation to give notice of the claim within 6 months of the accident, and thereafter took steps to lodge the claim form. Ultimately, no submission was made on behalf of the defendant that the explanation in respect of this period was not full or satisfactory. 36It then took some 5 months to obtain and lodge the CTP Medical Certificate. 37The evidence establishes that during this period the plaintiff experienced considerable difficulty in obtaining the relevant certificate, due to the non-cooperation of his general practitioner, Dr Nicolau. It wasn't until 12 May 2006 when he telephoned Brydens and was told that he could obtain the certificate from another doctor. 38The plaintiff then changed doctors, and obtained a certificate from Dr Amjad on 17 May 2006. In the meantime, he was also chasing up an earnings certificate, and once he had received this, both certificates were forwarded by facsimile to Brydens on 19 June 2006. The original certificates were received by Brydens on 30 June 2006 and immediately forwarded to the insurer. 39The delay between the lodging of the claim form on 18 January 2006 and the supply of the CTP Medical Certificate on 30 June 2006 has, in my view, been fully explained by these events. 40It is clear that the focus during this period was in getting the CTP Medical Certificate , and I am satisfied that a reasonable person in the position of the claimant would have been justified in experiencing the same delay. 41Unfortunately, it then took Brydens a further 15 months to provide the insurer with any sort of explanation for the delay in lodging the claim form. It is necessary, therefore, to examine what happened in that period, and the period after that leading up to the CARS determination of the special assessment in respect of the late claim made on 28 September 2009. 42Some time after the provision of the CTP Medical Certificate conduct of the file was assumed by a principal of Brydens, Mr Robert Bryden. By letter dated 4 July 2006 Mr Bryden wrote to the plaintiff confirming lodgement of the claim form and reminding the plaintiff of the need to provide the insurer with a full and satisfactory explanation on why his claim form was lodged outside the required six-month period. He told the plaintiff Brydens would need to prepare an explanation for his signature. In order to prepare the explanation, Brydens required details relating to his treatment since the accident, and enclosed various medical authorities for signature and return by the plaintiff. The letter went on to stress that it was "essential that we proceed without any further delays." 430n 28 July 2006 Mr Bryden wrote to the plaintiff requesting him to sign and return medical authorities, urgently, by 4 August 2006. 44The plaintiff returned the signed medical authorities on or around 10 August 2006. Brydens then wrote to Medicare requesting a Claims History Statement. On 31 August Brydens wrote to the workers compensation insurer and to AAMI, advising that they would be in a position to forward the explanation for the delay once the Medicare statement was obtained. 45It was not until December, however, that Brydens made any effort to follow up Medicare, and on 18 December 2006 a further, up to date Claims History Statement was requested. On 8 January 2008 a follow up phone call was made to Medicare, when Medicare advised the statement would be forwarded next week. 46But nothing further happened until 14 April 2007 when AAMI wrote again requesting the explanation for the delay. Soon after that letter, another solicitor at Brydens, Ms Frances Smith, reviewed the file and on 27 March 2007 wrote to AAMI advising that some difficulty had been experienced in obtaining the HIC documentation "necessary to provide a full chronology of treatment". The explanation would be provided as soon as possible. Ms Smith gave instructions to a paralegal to take steps to obtain various pieces of information she considered were required for the completion of the explanation. 47According to the unchallenged evidence of Ms Smith: "It [was] my task to prepare the explanations for delay in lodgement of claim forms in matters conducted by Mr Bryden. It [was] the usual practice of the firm to require an HIC list of payments and if applicable a schedule of workers compensation payments in order that a full chronology of treatment can be provided in such explanations for delay." 48What followed then was a period of relative confusion concerning the information required for the explanation. There were two factors at play that contributed to the confusion, and further delay. First, correspondence from Brydens and Medicare was being sent to the plaintiff's old address. This situation did not become apparent until the plaintiff contacted Brydens on 7 August 2007. On 8 August Brydens wrote again to Medicare requesting that the Claims History Statement be sent to the plaintiff. Second, some of the documentation requested went to the workers compensation section of Brydens and there was a delay in the information being passed on to Mr Bryden's section, where the motor accident claim was being handled. 49Finally, however, on 28 August 2007, Ms Smith drafted a statutory declaration for the plaintiff to execute, with a view to explaining the late lodgement of his claim form. This was subscribed and declared on 13 September 2007 and forwarded to AAMI on 17 September 2007. 50The plaintiff's first statutory declaration of 13 September 2007 describes the post-accident history and sets out treatment dates and payments, including HIC payments. It goes on to recount that the plaintiff first obtained legal advice in October 2005, following which steps were taken to lodge the claim form. He stated: "...I did not know that a motor accident claim form needed to be lodged. It was my understanding that the workers compensation insurer took care of everything..." 51Brydens then prepared an Application to CARS for General Assessment, which was lodged on 28 September 2007. 52On 3 October 2007, AAMI wrote to Brydens rejecting the plaintiff's explanation because no details were provided as to why the plaintiff did not seek legal advice earlier, or as to the delay between the initial conference with Brydens and the lodging of the claim form. 53Accordingly, Ms Smith set about preparing a further statutory declaration for the plaintiff to execute. She also prepared a statutory declaration for her own execution, setting out the history of the conduct of the matter by Brydens. 54The plaintiff collected his second statutory declaration in January 2008. He returned it 2 days later, but Ms Smith did not receive it. She blamed the paralegal, Ms Singh, for not making a diary entry to follow up the plaintiff, when in fact, the document had already been returned. It was not until further correspondence was received from AAMI that the missing statutory declaration was followed up. Ms Smith declared in her statutory declaration: "On 7 April 2008 three letters dated 22 November 2007, 23 January 2008 and 1 April 2008 from the Motor Accident Authority were brought to my attention. The first two letters requested among other things that an Application for Special Assessment be lodged with CARS in respect of the dispute between the parties as to whether the Claimant could make a late claim. The third letter advised that the CARS Application for General Assessment had been dismissed because neither a MAS Application for Assessment of Permanent Impairment nor a CARS Application for Special Assessment had been lodged. I did not see these letters prior to 7 April 2008." 55Following this, the plaintiff attended at Brydens to execute his second statutory declaration on 21 April 2008, following his return from a holiday, and Ms Smith executed her statutory declaration on 24 April 2008. The plaintiff's second statutory declaration dated 21 April 2008 was short: "Shortly before consulting Brydens Law Office I had a conversation with Mr Charlie Pitcock who was my supervisor at work. I was expressing my dissatisfaction to him in relation to matters which had arisen with the workers compensation insurer. This included difficulty in obtaining approval for payment of an MRI scan. He said to me words to the effect, "you should take legal action." Within days I contacted Brydens Law Office and made an appointment for consultation with Brydens Law Office". 56The plaintiff's second statutory declaration of 21 April 2008 was not sent to the insurer. Nor was Ms Smith's statutory declaration of 24 April 2008. 57Conduct of the plaintiff's motor accident claim was then removed from Ms Smith. In May 2008 there was an internal restructure at Brydens involving Mr Bryden's common law division. Day to day carriage of the plaintiff's claim was assumed by another solicitor, Mr Wes Ranson. He undertook a review of the file on 15 May 2008. 58An appointment was made with Ms Welsh of counsel to review the material for the Special Assessment Application. A conference with Ms Welsh took place on 26 May 2008, following which the plaintiff attended at Brydens on 4 June 2008 when he swore his third statutory declaration. 59The plaintiff's third statutory declaration of 4 June 2008 set out more detail concerning the late lodgement of his claim form, including the problems he had had obtaining a medical certificate from Dr Nicolau. It also set out some detail concerning his second statutory declaration: "I didn't know that my solicitors didn't receive that document until they contacted me in April. As soon as I knew that the document had gone astray I attended their office in order to declare a further copy." 60The plaintiff's third affidavit was then forwarded to Lee & Lyons Lawyers, which firm was by this time retained by AAMI to act for the defendant. Lee & Lyons wrote to Brydens telling them they had not received the plaintiff's second statutory declaration of 21 April 2008. Brydens sent this statutory declaration on 20 June 2008. 61By letter dated 1 August 2008, Lee & Lyons wrote to Brydens advising that AAMI had rejected the plaintiff's further explanation for the delay in lodging the claim form. Arrangements were made for a further conference with counsel on 8 September 2008, but this had to be cancelled. 62Eventually, a further conference was scheduled with Ms Welsh of counsel on 24 October 2008, which was attended by Ms Smith, for the purposes of preparing a second statutory declaration to be executed by Ms Smith in connection with a proposed Special Assessment Application. 63On 29 October 2008 Brydens wrote to Ms Welsh requesting advice concerning the draft second statutory declaration and asking if further evidence would be required in support of the Special Assessment Application. 64Ms Welsh did not respond until 12 December 2008 when she rang Mr Ranson advising him to serve Ms Smith's second statutory declaration. Ms Smith then executed her second statutory declaration on 17 December 2008 and Mr Ranson took steps to serve it on Lee & Lyons. 65In her second statutory declaration Ms Smith referred to her earlier affidavit of 21 April 2008, a mistaken reference to 24 April 2008. Lee & Lyons then wrote to Brydens on 13 January 2009 asking for Ms Smith's first statutory declaration. This was forwarded by Brydens on 9 February 2009. 66By letter dated 12 March 2009 Lee & Lyons advised Brydens that AAMI still considered that a full and satisfactory explanation had not been provided for the delay in lodging a claim form: "In particular your Client's explanation is not satisfactory in that a reasonable person in the position of your Client would not have been justified in experiencing the same delay." 67Mr Ranson then arranged a further conference with Ms Welsh of counsel, which did not take place till 2 April 2009. A week later Ms Welsh provided an advice with Submissions in support of the proposed Special Assessment Application. 68The Special Assessment Application was lodged and served on 28 April 2009. 69The Special Assessment Application took its course. The insurer's reply was lodged on 29 May 2009 and a preliminary conference took place on 30 June 2009. 70In support of the application a fourth statutory declaration was executed by the plaintiff on 20 August 2009 and served on Lee & Lyons, with more detail of some of the events. 71In due course, the CARS Assessor determined the application and issued his Certificate of 28 September, to which I have already referred. The Assessor determined the application in favour of the plaintiff, and gave reasons. 72The insurer does not accept the determination and I am required to consider the issue of a full and satisfactory explanation afresh. 73I have examined the events between 30 June 2006 and 28 September 2009 in some considerable detail, in order that it might be understood why things happened as they did, or more correctly, why things did not happen until they did; to put them in context: Russo v Aiello [2003] HCA 53 at [4]. 74In my view, these events, viewed in their sequence, amounted to a full account of the conduct, including the actions of the plaintiff and his solicitors, and of their knowledge and belief. I am satisfied that details of all the acts and omissions relevant to the delay were provided to the CARS Assessor, so as to enable an evaluation of the reasons for the delay. 75Much could be said about the ineptitude of the lawyers involved in prosecuting the plaintiff's motor accident claim. There is an almost surreal aura of casualness surrounding the matter. Words such as neglect, incompetence, ineptitude and inefficiency spring to mind. The attention paid to this matter by those concerned was dilatory and desultory. Criticism, if it were relevant, is to be levelled at the participants I have mentioned, and also at the firm and its principals for the seemingly total absence of any systems and supervision. 76But the focus of the legislation is not about apportioning blame. It is about justifying the delay rather than excusing it: Russo v Aiello [2003] HCA 53 at [7]. 77I find, therefore, that the explanation for the delay was full. The next question is whether it was satisfactory, that is, would a reasonable person in the position of the plaintiff have been justified in experiencing the same delay? 78What constitutes justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purpose explained in the Act: Russo v Aiello [2003] HCA 53 at [5]. What the Act requires is justification for the delay; not demonstration that the delay did not cause harm: Russo v Aiello [2003] HCA 53 at [7]. In this case the insurer has known about the plaintiff's intention to claim since at least 18 January 2006. 79The essence of the plaintiff's explanation is that he relied upon his lawyers to do all the things necessary to prosecute his claim. In my view, there was nothing particular in the sequence of events that I have set out that indicates the plaintiff was aware there was a particular problem with the provision of the explanation. There are some instances of his being slow to attend to matters, but none of these were extreme, and the evidence establishes that once given a specific deadline in which to do something, he invariably complied. 80It was submitted on behalf of the defendant that the plaintiff is an educated man, employed in a senior management role. The need for urgency was pressed upon him on numerous occasions. He was not entitled to "sit in silence" but has to take some responsibility for periods of considerable inaction on the part of his lawyers. He never made an enquiry as to progress of his claim, or the outcome of any of the events, or why things were required, such as four separate affidavits. This is not the conduct of a reasonable person. 81This is the hindsight, legal counsel of perfection. The fact is that everyday, lay clients trust their lawyers. That's why they engage them. They assume that their lawyers are competent, and are diligently attending to the client's matter. 82Sadly, it is not always the case. But in the present matter, there was, as I have said, nothing in particular to alert the plaintiff to any problem and in my view, a reasonable person in his position would not have acted differently. 83I am satisfied, therefore, that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. I find therefore that a full and satisfactory explanation was provided to the CARS Assessor for the delay in giving notice to the insurer of the plaintiff's claim.

The delay in commencing proceedings 84I now turn to consider whether the explanation for the delay in the commencement of the proceedings in this court was full and satisfactory. 85In her letter dated 7 November 2005, Ms Kha wrote to the plaintiff formally advised him as to the time limit for the commencement of proceedings: "We advise that you have three years from the date of injury in which to commence proceedings under the Motor Accidents Legislation." 86On 6 January 2006, when the plaintiff had not returned the claim form, and Ms Nguyen telephoned him. In making a note of the call she wrote that the "limitation date" had been diarised, and put into the "Master Diary" six months before the expiry of the limitation period. A review was also diarised for one year from that date. 87Clearly, none of these follow ups were ever actioned. 88In the letter from Brydens of 30 May 2006, the plaintiff was again told that proceedings must be lodged within 3 years. In the letter dated 23 July 2007 he was again told that the 3-year limitation period would expire on 29 September 2007. 89It is undoubtedly clear that the plaintiff knew there was a three years time limit. It is not clear, however, that he was told what had to be done in that time frame. It was not explored, for example, whether he understood the Application to CARS for General Assessment, which was lodged on 28 September 2007, was a sufficient compliance. Nor were the consequences of a failure to comply ever explained to him, such that he assumed the need for a full and satisfactory explanation in respect of the statutory declarations he was providing, were also intended to deal with that situation. Like everything else in this matter, the conduct of the plaintiff's claim was marked by the ineptitude to which I have already referred. 90It is clear that Mr Ranson gave no advice to the plaintiff about the 3-year time limit. Mr Ranson was cross-examined on 25 November 2011 in respect of his first affidavit affirmed on 19 October 2011. He gave the following evidence (from T 44.14): " HIS HONOUR: Right. So this is the question for Mr Ranson. Q, When you did a review of the file in May 2008 did you review whatever was required to be done in relation to meeting the three year time limit? A. By that stage the three year time limit had been - elapsed. Q. So you did notice that? A. Yes. Q. What did you decide to do and what did you advise your client in that regard? A. It is my understanding that-- Q. No, what did you do, I don't want to know what you understood, what did you do? A. Made arrangements for the conferences to be arranged to enable the documents to be prepared. Q. So you, having reviewed the file, you saw that the three year period was over, you realised that you needed to provide a full and satisfactory explanation, did you tell your client? A. I can't recall your Honour, I don't think so. Q. Well not in any letter anyway? A. That's right not in any letter. Q. So is it probable that you didn't? A. Not myself personally no, it is probable. Q. So since 2008, May 2008 you've known that this plaintiff was out of time, what have you done about it, apart from not telling your client? A. I sought to cure the defects of the CARS assessment application. Q. Would that have cured the three year period? A. No, the three year period had already lapsed. Q. What did you do to fix up the problem that you were out of time? A. I sought to-" 91At this point I called the hearing to a halt and stood it over to enable Mr Ranson to review the file and put on any further evidence that might be appropriate. Mr Ranson executed a second affidavit on 1 December 2011, which was read without objection when the hearing resumed on 6 December 2011, in relation to which he was cross-examined. 92It is clear that Mr Ranson, with the benefit of hindsight and experience, would now do things differently when confronted with a similar situation. The steps that he took at the time, he freely acknowledged, were wrong, a result of his inexperience and lack of a full appreciation and understanding of the operation of the MAC Act and the CARS system. 93He stated in his second affidavit: " As outlined in my earlier affidavit, I prepared and caused the plaintiff's MAS Application to be lodged with the Motor Accidents Authority on 15 September 2009. By lodging the plaintiff's MAS Application, I was aware that the two issues which made the plaintiff's earlier General Assessment Application defective had been addressed which meant that a further General Assessment Application could then be lodged. At that time, being September 2009, I was aware that the insurer had not yet issued a section 81 notice in respect to liability. As outlined in paragraph 44 of my earlier Affidavit I wrote to Lee & Lyons on 6 October 2009 requesting the insurer's determination on liability. As noted in that paragraph, it was my understanding that such a determination was necessary to determine which jurisdiction to pursue the claim in on behalf of the plaintiff in the CARS system or at court. At that time I understood that it would be of no benefit to lodge a further General Assessment Application if the insurer was going to subsequently issue a section 81 notice denying liability which would have had the effect of forcing the plaintiff to commence Court proceedings. As outlined in paragraphs 46 and 47 of my earlier affidavit, it was my understanding, at that time, that the MAS determination was required to assist Counsel to prepare draft submissions addressing all heads of damage in support of the plaintiff's further General Assessment Application. In regards to this issue, my practice has changed since October 2009. Now, if I am confronted with a situation where the 3 year limitation period has expired and the MAS determination is till outstanding, I would now make arrangements for the plaintiff to confer with counsel to prepare Statements and Submissions in support of a General assessment Application in the absence of a final MAS determination... My current practice would be lodge the General Assessment Application in the absence of the outstanding MAS determination." 94It was not put to Mr Ranson that his current practice was inappropriate or inadequate. 95I am satisfied that in the light of the frank concessions by Mr Ranson as to the errors made in respect of the commencement of the court proceedings out of time, that there has been a full account of the conduct, including the actions, knowledge and belief of those acting on behalf of the plaintiff at all relevant times. As for the plaintiff himself, none of these matters was ever revealed to him, and the state of his knowledge and belief remained one of ignorance. 96Counsel for the defendant did not, in the final result, make any submission that the explanation as to the delay in commencing proceedings was other than the result of Mr Ranson's errors. That being the case, I am satisfied that the explanation for the delay was full. 97Nor did counsel for the defendant press me to the effect that the explanation was not satisfactory. Logically, if the solicitor was in error, and gave no relevant advice to his client, it follows that a reasonable person in his position would not have done anything different. 98For similar reasons to those given above as to the delay in giving notice of the claim, I am satisfied that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay in respect of the late commencement of proceedings. There was nothing in particular to alert the plaintiff to any problem and he was entitled to assume, as he did, that his lawyers were diligently and appropriately attending to the necessary steps in the proper prosecution of his claim. 99I am satisfied, therefore, that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. I find therefore that a full and satisfactory explanation has been provided for the delay in commencing proceedings.

Costs 100The costs of the motions should not follow the event. 101Up until the second day of the hearing the explanation for the delay in commencing proceedings was in my view less than full. It was not until the reading of Mr Ranson's second affidavit that a full explanation was provided, such that an evaluation as to whether or not it was satisfactory could be made. 102In those circumstances, I consider, in the exercise of my discretion as to costs, that the plaintiff should pay the costs of the defendant in respect of both motions.

Disposition 103The plaintiff has satisfied the court as to the various matters such as to justify an order giving him leave to proceed and to prosecute the proceedings brought. 104The plaintiff's motion therefore succeeds and the motion filed for the defendant is dismissed. 105I order that the plaintiff be given leave to proceed on the Statement of Claim already filed. 106I order the plaintiff to pay the costs of the defendant in respect of both motions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 February 2012

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Judgment (7 paragraphs)

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Cases Cited (6)