Linda Joy Crawshaw v Natasha Coxon

The evidence

1. The evidence relied on by the parties was voluminous.
2. The plaintiff relied on three affidavits of Ms Sylvia Thompson sworn on 21 March 2018, 28 March 2018 and 4 April 2018. In all, the three affidavits comprised over 1500 pages. In addition, the plaintiff relied on an affidavit sworn by herself on 6 April 2018, which set out relevant matters to the various heads of damages claim by her in the proceedings, and annexed her statutory declaration setting out her explanation for the delay in bringing her claim. The plaintiff also tendered a medical report of Dr Davis dated 13 May 2016 (Ex A).
3. The defendant relied on three affidavits sworn by Mr M J Malley, solicitor with the carriage of the matter, and sworn on 6 February 2018 and 5 April 2018 (two affidavits). Those three affidavits comprised almost 200 pages of evidence.
4. Given the way the issues in the claim were distilled by learned Counsel for the defendant prior to the evidence being read, that volume of evidence was almost entirely unnecessary for the determination of the real issues between the parties, counsel having identified what he contended was a lacuna in the plaintiff's explanation. Counsel for the plaintiff sought leave, which was not opposed, to call the plaintiff to give evidence about her election to not accept the CARS award.

The plaintiff's evidence

1. The plaintiff gave evidence that she was employed as a social worker. Following the CARS hearing, she had been informed by her solicitor by telephone of the award issued in her favour. She gave further evidence that she entrusted her solicitors to run her case for her, and that she had attended to their various requests from time to time.
2. In cross-examination the plaintiff gave evidence that in the phone call in which her solicitor had advised the result of the award in her favour, she was told of her options. She understood those to be "stop or pursue the claim further", namely, to proceed to court proceedings. She was told that the court proceedings was "a good option", but was not told that the option may not be available if the court did not grant leave to proceed.
3. The plaintiff gave evidence that she had received a letter in relation to the hearing of the Summons, but before receiving that letter, she did not know that she required leave. While she was now aware that her proceedings had been commenced out of time, she did not know that when they were commenced.
4. The plaintiff gave evidence that that was the only phone call in which commencing proceedings were discussed. There were a number of other calls which she made to her solicitor in which she had told the solicitor that she wanted to "give up", however, her family had encouraged her to take the proceedings further. She had not received a letter from her solicitor confirming her instructions to commence proceedings, however, she had cooperated with her solicitor in the prosecution of the proceedings and had many conversations over the phone about that.
5. The plaintiff had no recollection of discussing with her lawyers filing the Statement of Claim before 22 December 2017, however, she recognised the Statement of Claim, which was marked for identification (MFI 1). It was a document she had seen before. When she had first instructed her solicitors, she had a recollection of being told that any proceedings to be brought by her were late. At that time she thought she had seven years in which to commence proceedings, but was told that the time limit was three years.

Defendant's submission as to full and satisfactory explanation for the delay

1. The defendant's submission, as indicated above, was that the plaintiff's explanation was not a satisfactory explanation in that whilst the court was entitled to find the plaintiff ignorant of the time limit and the need for leave to commence proceedings, there was no evidence of her solicitors providing advice to that effect. On that basis the plaintiff's solicitors should have given a full explanation to her following the CARS hearing, of which there was no evidence. It was therefore unsatisfactory for the plaintiff to remain ignorant when her instructions were sought to commence the proceedings.

The plaintiff's submissions

1. The plaintiff, by her learned Counsel, provided a thorough written outline of submissions setting out the history of the matter and the principles to be applied in determining an application pursuant to s 109(3) of the MACA. Those principles are uncontroversial as set out below. The plaintiff then set out submissions in respect of the various heads of damages to which it may be entitled to assist in the predictive assessment required pursuant to s 109(3)(b).
2. The plaintiff submitted that the absence of any evidence of advice provided by the solicitor to the plaintiff regarding her election to commence court proceedings had no relevance whatsoever to the application. What was relevant rather, was the plaintiff's explanation for the delay. When she had first instructed her solicitors she was told there was a three year limitation. She was also told of her options after the CARS hearing. Thereafter she entrusted her solicitors to prosecute her claim and it was submitted the explanation must be regarded as both full and satisfactory. There was a very short period of delay between the award on 23 October 2017 and the filing of the plaintiff's Statement of Claim on 30 November 2017.
3. The plaintiff relied on a report of Professor Ghabrial, orthopaedic and spinal surgeon, to submit that there could be no issue as to causation of the following injuries suffered by the plaintiff in the motor vehicle accident on 20 November 2011, namely: 1. "Left C7 radiculopathy, most likely as a result of an injury at the C6/7 segment. 2. Left L5 root entrapment, most likely at the L4/5 segment with bulging disc at the L3/4 segment. 3. Fracture of the superior endplate of the T5."
4. The plaintiff also relied on a report of Associate Professor Peter Papantoniou, orthopaedic and spinal surgeon, who opined that the plaintiff had sustained a thoracic wedge fracture and an L4/5 disc disruption as a result of the accident.
5. The plaintiff relied on a report of Dr Davis (Ex A), who was of the opinion that the plaintiff had suffered mechanical trauma to the cervical, thoracic and lumbar spine, as well as a minor disc endplate fracture at T5, and a soft tissue injury in the lumbar region. Dr Davis had opined that the plaintiff now suffered a Post Traumatic Stress Disorder, or extremely severe Adjustment to Injury Disorder, with anxiety and depression, and that she would continue to experience those psychological difficulties.
6. As a result of the MAS process, a review panel had assessed the plaintiff's total whole person impairment, arising from the injuries she suffered, as 6% WPI, allocating 5% to the thoracic spine injury and 1% to the right shoulder injury. Her psychological injury had been assessed by assessor Bench in December 2015 as giving rise to a whole person impairment of 6%.
7. As a result of those WPI assessments the plaintiff was not entitled to an award or damages for non-economic loss. Her claim was therefore confined to damages for past wage loss, future economic loss, past and future treatment expenses and a claim for past and future domestic assistance.
8. For past wage loss, the plaintiff had been certified as unfit for work from 27 October 2011 to 7 November 2011, but thereafter had a graduated return to work. She was certified as fit for pre-injury duties on 10 September 2012. The plaintiff asserted that the minimum she would receive as an award of damages for past loss of earnings was the sum of $5,570.00, which represented the workers compensation payback, together with some component for loss of superannuation entitlements.
9. For future economic loss the plaintiff submitted that both Professor Ghabrial and Associate Professor Papantoniou had opined that she had limited fitness for work and should be subject to restrictions on lifting, together with restrictions on bending, twisting and excessive use of the upper limbs. She should also be allowed to sit, stand and change position to be comfortable in her work. Dr Davis had noted that the plaintiff had been unable to complete her Master's Degree and that she should avoid work of a weighted, forceful, repetitive nature, or work that involves sustained flexion.
10. Dr Davis had opined that the endplate injury in her thoracic spine may result in some degree of degenerative change, and Associate Professor Papantoniou had raised the possibility of surgery to the lumbar and thoracic spine. On that basis it was submitted that the plaintiff would be entitled to claim a buffer for future loss of earning capacity that would exceed the threshold in question here, namely, $112,500.00. Further, the plaintiff submitted that the defendant had previously conceded a buffer of $10,000.00 for future loss of earning capacity, which was described as "grossly inadequate given the plaintiff's impairments".
11. For past and future treatment expenses the plaintiff set out various components of the plaintiff's claim, arriving at an approximate figure of $40,000.00. That included an assessment by Ms Trudy Warner, occupational therapist, of future equipment requirements of nearly $15,000.00.
12. In respect of the plaintiff's claim for past and future gratuitous attendant care services, learned Counsel for the plaintiff acknowledged that a certificate issued by Assessor David McGrath dated 18 May 2017 precluded any claim for attendant care services and child care services captured by s 15B of the Civil Liability Act 2002. However, it was submitted on behalf of the plaintiff that a trial judge would be likely to be persuaded to reject the certificate of Assessor McGrath pursuant to s 61(4) of the Act, on the basis that the plaintiff had been denied procedure fairness in respect of that assessment. The assessment had taken place without examination of the plaintiff and that the assessment was based on video surveillance not seen by the plaintiff. If the certificate was rejected by the trial judge, the matter would then have to be referred back to MAS pursuant to s 61(5) of the MACA and a fresh assessment made. In any event, if that did not occur, the certificate issued by Assessor McGrath was restricted to its terms and did not include any claim made for gardening, mowing or yard maintenance. Properly assessed at a rate of $70 per week, such claim would amount to an award of damages in excess of $64,000.00.
13. It was therefore submitted that the threshold in s 109(3)(b) would likely be passed, and therefore leave should be granted to the plaintiff, nunc pro tunc, to commence proceedings.

The defendant's submissions on the threshold

1. The defendant submitted that the predictive assessment required for determination of the issue here would not allow for the court to take into account the certificate of Assessor McGrath being rejected pursuant to s 61 of the MACA. The better view here would be that no allowance would be made for past gratuitous care and assistance. The claim made for gardening, lawn mowing and the like was submitted to be incongruous, given the assessor's findings. However, learned Counsel for the defendant conceded that the application had to be determined, taking the plaintiff's medical case at its highest. The court would therefore have limited regard to the defendant's medical evidence. It was submitted, however, that the court would have regard to the MAS assessments tendered which preclude any damages being awarded for non-economic loss, past care and for the workers compensation payments to be repaid.
2. It was submitted that the plaintiff had, for a period longer than six years, returned to work full time and therefore pursuant to s 126 of the MACA, the assumptions required for an assessment of future loss could not be made out. It was submitted that her career has not been interrupted, although she was working in different jobs, she was still working in the same field as a social worker.
3. Counsel explained that the concession made previously by the defendant of a buffer of $10,000.00 for the future was to enable the plaintiff to have time off to seek psychological treatment.
4. It was submitted that on the basis of the plaintiff's history since the accident, the plaintiff's case would involve an assessment of past and future treatment, together with some ancillary items, not exceeding $40,000.00. The defendant's medical case was that the plaintiff's injuries had stabilised and that whilst she may continue to suffer some aches and pain, they did not translate into an award of damages for future economic loss in excess of $70,000.00 to enable the plaintiff to cross the threshold required. It was submitted that the plaintiff's approach, as outlined above, was "too granular" and there was no evidence of any ongoing impairments which would result in awards of damages for future loss. Rather, any trial judge would ask rhetorically, how is the plaintiff coping now? Whilst the plaintiff appeared to be upset, it was submitted that such a condition did not sound in damages. She had had a sedentary career as a social worker and there was no impairment to that career in the future.

Legal principles

1. Section 109 of MACA involves the exercise by the Court of a broad discretion. Section 109(3)(b) employs the same formula of words, i.e. "likely to be awarded" as was used in s 43A(7) of the Motor Accidents Act 1988. In respect of that section, in Harika v Stanley Tupaea (2003) 58 NSWLR 675, Mason P said as follows: "25. An application under s 43A(7) must proceed on evidence (Aiello at [13]). But it is not the trial of the claim and it is relevant that the parties fought this particular application without cross-examining any of the witnesses. When parties join issue on the basis of tendering medical reports that take a range of positions, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence. 26. What is required by the words "likely to be awarded"? 27. The word "likely" must be construed in context. It does not always require proof or persuasion to a probability greater than 50% (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979 42 FLR 331 at 345-7, Jungarrayi v Olney (1992) 34 FLR 496). The present case involves an interlocutory application in which summary dismissal of a presumptively valid claim is sought. The court is involved in a predictive exercise. In analogous contexts, judges have favoured the broader sense of "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent" that Deane J adopted in Tillmanns (see Secretary, Department of Employment, Education Training and Youth Affairs v Barrett (1998) 82 FCR 524, Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Smith v Western Australia (2001) 108 FCR 442). That is the approach to be adopted here."
2. That approach was adopted by Hoeben JA (Basten and Tobias JJA agreeing) in Eades v Gunestepe [2012] NSWCA 204. His Honour also adopted the construction applied to the words "likely to be awarded" in Sinclair v Darwich (2010) 77 NSWLR 166 as meaning that there is a "real chance" or a "real prospect" of such an award.
3. In respect of the assessment of damages involved in this evaluation, Hoeben JA (as his Honour then was) described it as a "predictive assessment". The Court is to assess whether there is a "real chance" or "a real prospect" of the plaintiff crossing the threshold. This was described by Basten JA as "an imprecise standard" (see [10]). His Honour went on to find that what is required is "the notion of a substantial, as distinct from a remote chance", applying Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 398.
4. In Dijakovic v Perez [2015] NSWCA 174 at [120], "the threshold issue" involved in s 109(3)(b) was approached by considering "the claimant's medical evidence, taken at its highest". That has been held to also extend to the plaintiff's lay evidence, for example, in relation to the need for domestic care - see Al-Ebadi v Guo [2017] NSWDC 107 per Taylor DCJ, at [24]. His Honour went on to state, however, that: "The Court must, nevertheless, exercise care in determining what is the real extent of the plaintiff's evidence on damages, rather than accept submissions on damages that may lack an evidentiary foundation."

Determination

1. I do not accept the defendant's submission that the plaintiff's explanation is not full, and is therefore not satisfactory on the basis of a lacuna in the evidence as to what was in her mind at the time of making her election following the CARS award. The defendant had already accepted the plaintiff's explanation for her late claim as being a full and satisfactory explanation. Further, it was conceded that the plaintiff's claim was thereafter diligently prosecuted through the MAS process to the CARS hearing. The Statement of Claim was filed on behalf of the plaintiff approximately one month after the CARS award. The plaintiff's evidence made it clear that she relied on her solicitor's advice to commence those proceedings, even though she was not told that leave was required to commence the proceedings out of time. Given the defendant's concession as to the full and satisfactory explanation for the delay in bringing a late claim, and the diligent prosecution of the plaintiff's claim thereafter, it would have been a reasonable expectation that leave would be granted in the court's discretion, provided the damages threshold could be met.
2. Applying the legal principles set out above, in determining whether the plaintiff has established that total damages of all kinds likely to be awarded to her exceeds $112,500.00, I am mindful that there has been no trial of this claim and no cross-examination of the medical experts. I am also mindful of the predictive exercise involved in the assessment of the damages for this purpose.
3. Taken at its highest, the medical evidence referred to above relied on by the plaintiff, establishes that the plaintiff received physical injuries outlined in [21], together with a psychological reaction. I accept that the plaintiff, following the accident, was off full time work for a relatively short period of time, but thereafter had a graduated return to work over approximately 12 months. I also accept that as a result of her injuries she has had to change the nature of employment from time to time, and while she has remained in full time employment, there are restrictions on her. Also, she faces some prospect of an ongoing degenerative condition in her spine and the possibility of spinal surgery. In those circumstances, whilst her claim for past loss may be limited to a modest amount reflecting the workers compensation payback, there is a real chance that on a full hearing the plaintiff will establish that she has a diminished earning capacity in the future, which is or may be productive of financial loss, in accordance with Medlin v State Government Insurance Office (1995) 182 CLR 1, and that she will be able to establish an entitlement to damages pursuant to s 126 of the MACA on the basis of proven assumptions as to her ability to continue work, or to have had working life shortened.
4. I am not prepared to take into account, as part of the predictive assessment, that a trial judge may reject the certification of Assessor McGrath in respect of her need for past gratuitous care and assistance. However, that does not mean that she will be entitled to an award of damages for past loss relating to gardening, lawn mowing and the like, and an award of damages for a substantial time into the future. In addition, the plaintiff will be entitled to past and future treatment expenses and incidentals which the defendant has conceded may be in the order of $40,000.00.
5. The defendant has admitted liability and the matter will proceed to trial on the question of damages only. On the above analysis, accepting the plaintiff's medical evidence at its highest, there is a real prospect that the plaintiff would be awarded damages under the heads of damages set out above, well in excess of $112,500.00.
6. I am therefore persuaded that both limbs of s 109(3) have been satisfied and I propose to grant leave to the plaintiff to commence proceedings in respect of her claim for personal injury damages arising from the motor vehicle accident on 20 October 2011, nunc pro tunc, by the filing of her Statement of Claim on 30 November 2017.

Conclusion

1. I make the following orders: 1. I grant leave to the plaintiff to commence proceedings for damages for personal injuries arising from a motor vehicle accident on 20 October 2011, nunc pro tunc, by the filing of her Statement of Claim on 30 November 2017. 2. I dismiss the defendant's Notice of Motion filed on 22 December 2017. 3. No order as to costs in regard to the Summons filed 7/2/18. 4. Order that each party pay its own costs of the Notice of Motion.

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: 16 April 2018