Leibeck v RMQ Contracting Pty Ltd

Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 CASES CITED: Clark v Ryan (1960) 10 CLR 483 McNamara v Fitzgibbon [2005] NSWCA 274

PARTIES: Ronald Allen Leibeck (Plaintiff) RMQ Contracting Pty Ltd (Defendant)

COUNSEL: Mr A McSpedden (Plaintiff) Mr G Smith (Defendant)

SOLICITORS: Bell Lawyers (Plaintiff) TL Lawyers (Defendants)

1. Two matters arise for determination. The Plaintiff's Notice of Motion seeks an order nunc pro tunc seeking leave to validate the proceedings already commenced on 7 March 2008 contrary to the requirements of the scheme of the Motor Accidents Compensation Act, 1999. The Plaintiff seeks such leave because of the unusual circumstances in which his claim has arisen. The Defendant's Notice of Motion seeks dismissal of the Plaintiff's proceedings for non-compliance with the requirements of Section 109(2) of the Act.

2. The Plaintiff commenced proceedings against his employer on 7 March 2008 in respect of a work related injury he claims to have sustained on 31 August 2004 whilst driving his employer's prime mover truck. The Plaintiff claims that the driver's seat, the shock absorbers and suspension and/or other components of the prime mover were unsafe, defective and unfit for the intended purpose and that these conditions caused him to suffer a back injury consequent upon him driving the truck over a pothole or object on the roadway which he was unable to avoid.

3. Since his injury the Plaintiff has been in receipt of continuous workers' compensation payments. On 17 June 2007, in a conference with counsel, he became aware for the first time that his injury could give rise to a potential claim under the Motor Accidents Compensation Act, 1999.

4. Thereafter the following events occurred: (a) On 20 June 2007 a Motor Accidents Act Personal Injury Claim Form was completed and signed by him.

(b) On 20 June 2007 his treating doctor completed and signed a Medical Certificate.

(c) On 6 July 2007 he completed a Statutory Declaration to explain the delay in lodging the Motor Accidents Act Personal Injury Claim Form.

(d) On 7 July 2007 a copy of the Motor Accidents Act Personal Injury Claim Form was sent to the CTP insurer along with the Statutory Declaration explaining the circumstances and delay to that point in time.

(e) Thereafter the Plaintiff attended to all requests for particulars and medical appointments that were required of him.

(f) Between July 2007 and November 2007 the Plaintiff's solicitor and the Defendant's insurer exchanged correspondence, the effect of which was that the CTP insurer indicated it would not provide indemnity to the Defendant under the Motor Accidents Compensation Act, 1999 .

(g) On 21 November 2007 the Plaintiff lodged with the Motor Accidents Authority an application for exemption under Section 92(1)(a) of the Act.

(h) On 27 November 2007 the CTP insurer advised that it had changed its position and would grant an indemnity to the Defendant in respect of the claim.

(i) On 28 November 2007 the Motor Accidents Authority rejected the Plaintiff's application for exemption.

(j) On 30 November 2007 a further application for exemption was lodged with the Motor Accidents Authority.

(k) On 16 January 2008 a Certificate of Exemption was issued by the Motor Accidents Authority pursuant to Section 92(1)(a) of the Act to enable the Plaintiff to commence proceedings in Court. At this time a two month statutory suspension of time commenced. That suspension expired on 16 May 2008.

(l) On 7 March 2008 the Plaintiff issued the current proceedings by filing his Statement of Claim.

(m) On 16 May 2008 time again commenced to run by virtue of the operation of Section 109(2) of the Act.

(n) On 14 May 2008 the Court convened a pre-trial conference before the Judicial Registrar at which time the Defendant drew attention to the statutory limitation period triggered by Section 109(2) of the Act. Orders were then made for the filing of notices of motion for the purposes of determining the current issues under consideration.

(o) On 21 May 2008 the Defendant filed Notice of Motion seeking to have the proceedings dismissed pursuant to Section 109 of the Act.

(p) On 27 May 2008 the Plaintiff filed a Notice of Motion seeking an extension of time for filing his Statement of Claim to 7 March 2008 pursuant to Section 109(1) of the Act.

(q) On 20 June 2008 the hearing of the Notices of Motion were stood over after the Defendant filed Notice of Motion to vacate a hearing date.

(r) On 4 July 2008 the Defendant filed a defence denying all liability, not admitting damages and alleging contributory negligence but pleading no other defence.

(s) On 18 August 2008 there was a Directions Hearing at which the hearing date was set for the current Notices of Motion.

(t) On 12 September 2008 the Defendant's solicitor sent a letter stating that the Defendant would not argue that the Defendant had suffered prejudice on the application for extension of time but would submit that it would be futile to extend time because "there is no evidence to establish a claim under the Motor Accidents Compensation Act, 1999 , against RMQ Contracting Pty Ltd" (This confirmed the position previously advised by letter dated 13 June 2008 from the Defendant's solicitor to the Plaintiff's solicitor).

(u) On 6 June 2008 Mr Lindsell, the solicitor for the Plaintiff, filed an affidavit in support of the Plaintiff's Notice of Motion which contained material which sought to explain the delay in the commencement of proceedings.

(v) On 29 May 2008 the Plaintiff's solicitor wrote to the workers' compensation insurer requesting information concerning the employer's vehicle as part of a liability investigation. 5. In respect of items (a) to (k) in the above chronology the Defendant raises no issues concerning procedural default and does not seek to argue that the Plaintiff did not provide a full and satisfactory explanation for the delay up until that point, namely 16 January 2008.

The provisions of the Motor Accident's Compensation Act, 1999 that are relevant to the determination of the Plaintiff's Notice of Motion are Sections 66, 92, 108 and 109.

In this case Section 108(1)(a) of the Act provided that the Plaintiff was not entitled to commence proceedings until he had been issued with a Certificate of Exemption pursuant to Section 92(1)(a) of the Act. Section 108 provides: " 108 Claims assessment or exemption pre-condition for commencement of court proceedings

(1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless:

(a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims).

(2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim."

Section 92 of the Act provides: " 92 Claims exempt from assessment

(1) A claim is exempt from assessment under this Part if:

(a) the claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations, or (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part.

(2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

The scheme of the Act requires the Plaintiff to provide a full and satisfactory explanation before the Court can grant him leave to proceed. Section 109 of the Act provides: " 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 a claims assessor 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.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."

For the purpose of granting the leave a full and satisfactory explanation is defined in Section 66(2) of the Act. Section 66(2) provides: " 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."

Relevant periods of delay requiring full and satisfactory explanation

Having regard to the chronology of events and having regard to the Defendant's concession the relevant periods requiring full and satisfactory explanation within the framework of the Act are:- (a) between 17 January 2008 to 16 May 2008;

Having regard to the balance of justice between the parties and having regard to the matters raised in the affidavits of Mr Leibeck and his solicitor, Mr Lindsell, I am inclined to make an order nunc pro tunc granting leave to the Plaintiff to commence proceedings on 7 March 2008 as if those proceedings commenced regularly when in fact this was not the case.

Before making such an order I am obliged, as is required of me by Section 109(1) and Section 109(3)(a) of the Act, to consider whether the Plaintiff has provided a full and satisfactory explanation to the Court for the delay. I am required to consider the delay up to the time the application for relief is made. The Defendant does not raise issues concerning the requirements of Section 109(3)(b) of the Act in this case.

In the period 17 January 2008 to 16 May 2008 any obligation to progress the Plaintiff's case was in the hands of his solicitors. Until the Plaintiff's solicitor became aware of the CTP insurer's changed attitude to indemnifying the Defendant under the policy he was nevertheless precluded from initiating proceedings before the Motor Accidents Authority issued a Certificate of Exemption under Section 92(1)(a) of the Act. In that time certain steps required attention:

Once the Certificate of Exemption was issued on 16 January 2008 it was incumbent on the solicitor to promptly progress the matter by issuing proceedings. He filed proceedings so on 7 March 2008. In my view there is no evidence of any matter or thing done or not done by the Plaintiff or his solicitor in this period that tended to suggest delay of a kind requiring explanation as contemplated by Section 66(2) of the Act. In that period, the Plaintiff's solicitor had to attend to the obvious things required to be done prior to issuing proceedings.

These included considering the merit of the case for certification purposes. In this case certification of reasonable prospects of success would have required some consideration, reflection and judgment. He would then have needed to consult with the Plaintiff, then formulate the proceedings and file them. The actions of the Plaintiff in that period of time were to leave the matter in the hands of his Solicitor, reasonably so. In my view this is a full and satisfactory explanation in respect of this relatively short period.

The second period - 17 May 2008 to date of application for leave

In the period from 17 May 2008 the matter remained in the hands of the Plaintiff's solicitor. The actions of the solicitor were in turn subject to the requirements of Court imposed timetables. In this period there is no evidence that the Plaintiff's solicitor did anything other than comply with the requirements of Court orders and timetables. There is no evidence of any non-compliance with the procedural requirements of the Act. To my mind, therefore, in respect of this period nothing arises for explanation under Section 66(2) of the Act.

Second limb requirements of Section 66(2) of the Act

In my view a reasonable person in the position of the Plaintiff would have acted in the same manner as the Plaintiff has acted in this case.

This is not a case such as McNamara v Fitzgibbon [2005] NSWCA 274 where, in the period of 10 months following receipt by solicitors of a file, no explanation was given. In contrast, in this case the solicitors acting on the Plaintiff's behalf acted reasonably and promptly. In my view, having due regard to the chronology of events in this case, a full and satisfactory explanation has been given in respect of both periods in question.

Claimed futility of making the order sought by the Plaintiff

The Defendant has argued that it would be futile to make the orders sought by the Plaintiff. As I understand it that argument is based on the premise that without expert opinion in his favour showing the employer was in breach of its duty of care the Plaintiff cannot show a causal connection between the damage claimed and a relevant breach of the duty of care owed to the Plaintiff.

In my view the Defendant's argument is flawed as the evidence required to establish the Plaintiff's claim in negligence can be simply factual as would appear to be the case here. Alternatively, it could even be based on the Plaintiff's own training and experience as a truck driver over a period of 30 years. See Clark v Ryan (1960) 10 CLR 483 and Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538.

Although for more abundant caution it is often advisable to engage expert opinion to support a claim involving alleged defective equipment, there is no legal requirement that the Plaintiff must show, at this early stage when not all the forensic cards are required to be placed on the table, that his case is supported by expert evidence. The Plaintiff may ultimately choose to have his case determined without relying on an expert opinion. Such forensic decisions arise for consideration at a later stage of the case, not at this stage. For these reasons I do not accede to the Defendant's submission to dismiss the Plaintiff's claim on account of argued futility.

In respect of the Plaintiff's motion filed on 27 May 2008 I order that:- (a) Time for commencing the proceedings is extended nunc pro tunc until 7 March 2008; and

(b) The Defendant is to pay the Plaintiff's costs of the motion.

In respect of the Defendant's motion filed on 21 May 2008 I order that:- (a) The motion is dismissed; and

(b) The Defendant is to pay the Plaintiff's costs of the motion.

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