Ly v Mukdassi

ex tempore Judgment 1My Linh Ly was born in Vietnam in 1967 and has lived in Australia since 1988. She swore to the truth of an affidavit in this application after it was interpreted into the Vietnamese language. That affidavit evidences the following matters. 2At about 4.30pm on 27 May 2010 My Linh Ly was parking her car near Wylie Park Train Station to collect her children. As her children crossed the road to her car her six-year-old son, Andy, was involved in a car accident. Mrs Ly saw him with his leg located directly beneath the car's tyre. Andy was rushed to the emergency ward of Westmead Children's Hospital where he was operated on and remained for six weeks. Shortly after the accident Mrs Ly "started experiencing nightmares and flashbacks of the accident". She was "constantly scared and anxious". She ceased work four weeks after the accident. 3Mrs Ly was advised by a friend to see a solicitor on Andy's behalf. She found MN Compensation Lawyers in a Vietnamese newspaper and first consulted them in October 2010. She spoke to Mary Nguyen about Andy's claim. 4Mrs Ly had no discussion with Ms Nguyen about the shock she suffered seeing her son and his injuries. Mrs Ly could not recall any advice from Ms Nguyen to the effect that Mrs Ly could claim for her loss. Mrs Ly had not previously been involved in litigation or a motor vehicle accident and was unaware of any time limits. 5A claim form for Andy was completed on 20 October 2010. At some time after this and before 15 November 2011 Mrs Ly was recommended to see Gajic Lawyers who have become the solicitors for Andy's claim. 6Prior to consulting Gajic Lawyers Mrs Ly saw a general practitioner, Dr Dzung Michelle Do, who referred her to a psychiatrist, Dr Son Nguyen, for treatment. Dr Nguyen diagnosed her as having depression and provided a mental health plan. 7On 15 November 2011 Mrs Ly first consulted the firm and met the principal Rad Gajic. He advised her that she could make a claim for psychological injuries resulting from Andy's accident. The notes of that conference indicate that the initial concern was the progress of her son's claim, but those notes record that in the latter part of the conference Mrs Ly said that MN Lawyers had never discussed her making a claim, that she had seen no doctors and that she was very stressed and "eats to fight stress". 8Mrs Ly gave evidence that it did not initially occur to her that she should make a claim for psychological injury. She thought a claim could only be made for physical injuries. She was not aware of any legal avenues available to her prior to consulting Gajic Lawyers. 9Mrs Ly consulted Sean Chen of Gajic Lawyers in late December 2011 and early January 2012 to complete a personal injury claim form and a late claim statement. The late claim statement gave her explanation of why she did not make a claim earlier, an explanation largely reiterated in her affidavit. 10Section 72 of the Motor Accidents Compensation Act 1999 provides that claims must be made within six months of the date of the accident. It provides: "72 Time for and notice of making of claims (cf s 43 MAA) (1) A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person's death. (2) A claim is made by giving notice of the claim as follows: (a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer, (b) in any other case, to the person against whom the claim is made. (3) The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if: (a) that person is dead, or (b) that person cannot be given notice." 11Section 73 provides that a late claim can be made after the six-month period if the claimant provides a full and satisfactory explanation of the delay in making a claim. It provides: "73 Late making of claims (cf s 43A MAA) (1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer. (2) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation. (3) If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless: (a) the insurer has lost the right to reject the claim on the ground of delay, or (b) a claims assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim, or (c) the claim is referred only for a certificate of exemption from assessment under Part 4.4. (4) The insurer loses the right to reject a late claim on the ground of delay if the insurer: (a) does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay, or (b) does not, within 2 months after receiving an explanation for the delay, reject the explanation. (5) If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay. (6) An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay. (7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim. (8) In this section, a reference to an insurer includes a reference to the person against whom the claim is made. Note. The combined effect of sections 72 and 73 is as follows: A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided. Section 96 provides that a dispute about whether a late claim can be made may be referred to a claims assessor." 12The insurer rejected the claim on the ground of delay. Mrs Ly has commenced these proceedings against the driver of the other vehicle and in accordance with s 73(5) of the Act the insurer has applied to have the proceedings dismissed. 13The Insurer's application was made within the time allowed in s 73(6). Accordingly, I must dismiss the claim as provided by s 73(7) unless I am satisfied that Mrs Ly has made a full and satisfactory explanation for the delay in making the claim. 14The test of a full and satisfactory explanation is found in s 66 of the Act which provides: "66 Definitions (cf s 40 MAA) (1) In this Chapter: insurer, in relation to a person, means the insurer who insures the person against the person's liability for damages in respect of a claim, whether or not under a third-party policy, and includes: (a) the Nominal Defendant, and (b) where a claim is handled on behalf of an insurer by another insurer, the other insurer. (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." 15It can be seen that the explanation by Mrs Ly needs to satisfy two conditions. First, she needs to provide a full account including of her "actions, knowledge and belief". Secondly, an explanation is not a satisfactory explanation unless "a reasonable person in the position of the claimant ... would have been justified in experiencing the same delay". 16I have considered a number of authorities including Russo v Aiello [2003] HCA 53 at [58] and Mancini v Thompson [2002] NSWCA 38. 17In Laidlaw v Touma [2002] NSWCA 190 at [19], Stein JA determined that "full" in this context meant "complete - that is, that a complete explanation is required" and also that the onus lay on the claimant. 18In Ellis v Reko Pty Limited [2009] NSWDC 288 at [20], Knox SC DCJ stated: "The focus of the procedure in determining the concept of a satisfactory explanation is upon justifying it rather than excusing it ...The matter is then determined by looking at whether the conduct is justified by reference to the way in which a reasonable person in the position of the applicant could have been expected to behave." 19Diaz v Troung [2002] NSWCA 265 indicates that the court must take into account the subjective circumstances of the claimant for the purpose of deciding whether the reasonable person, presumably standing in the position of the claimant, would have been justified in experiencing the same delay. 20In Hickey's Transport Pty Limited v Ken Gordon [2008] NSWCA 167 at [59] where the Court of Appeal said: "Where the delay is not insignificant, and where the conduct of claimants' solicitors has obviously been careless or slack, one would ordinarily expect the claimants concerned to explain what they knew of that conduct, whether they understood its legal implications, whether they questioned the solicitors about what was taking place and whether they themselves, in the particular circumstances, took reasonable steps to combat the delay." 21And reference was also made to Buller v Black [2003] NSWCA 45 where Giles JA at [95] in speaking of the six month requirement stated: "The requirement must be understood for its function in the wider scheme in the Act. Section 43 states as its object, that is, the reason for the six month time limit, promotion of the early making of claims to enable the insurer to commence investigation while evidence is available, to identify injuries and facilitate access to injury management and rehabilitation services, and to more accurately predict claim frequency and hence formulate premiums. Late claims will still be recognised provided a full and satisfactory explanation for the delay in making the claim is provided, but only if the claimant's explanation is (relevantly) satisfactory, and satisfactoriness is given a minimum content. A person with knowledge of the six month time limit, in particular, can not tarry." 22Walker v Howard [2009] NSWCA 408 at [56] and [57] involved the judgment of the President, with whom the other members of the court agreed, which determined that: "the phrase 'including the actions, knowledge and belief of the claimant' should not be read as 'including the actions, knowledge and belief of the claimant and any person acting or purporting to act on his or her behalf.' [57] The meaning of 'full' in s 66(2) is to be understood in the context of the purpose of the provision and the explanation: to enable the court to evaluate the reasons for the delay. Thus all relevant information to that end is required." 23The insurer submitted that the explanation provided by Mrs Ly was neither full nor satisfactory in several respects. 24First, the lack of adequate explanation as to the delay between 27 May 2010 and first consulting MN Compensation Lawyers in October 2010. The Insurer pressed this only faintly. The same delay applied in respect of Andy's claim, which was insignificant because that claim was still made within the statutory period. 25I do not regard there to have been a failure in the explanation in respect of this period. Mrs Ly's concerns in the early weeks after the accident were understandably directed to the medical condition of her son and she also explained that she was unaware of the time limits. Further, this period did not contravene the time period for making a claim and thus, in my view a reasonable person experiencing this period of delay would have been justified. 26Secondly, the Insurer submits that Mrs Ly gave no full or satisfactory explanation in relation to her previous experience with lawyers acting for her. There does not seem to be any basis for this submission. Mrs Ly's explanation relevantly states: "Prior to this accident I had not been involved in litigation nor been involved in a motor vehicle accident. I was not aware of any time limits." 27There was no suggestion in the evidence that Mrs Ly subsequent to the accident had been involved in any litigation other than the present proceedings and those of her son. There is no basis to conclude that other contact with lawyers in other contexts other than litigation is relevant to an explanation for delay in making the claim. 28Thirdly, the Insurer challenges the adequacy of the explanation of the delay for the period 20 October 2010 when the claim form was completed for Andy to 15 November 2011 when Mrs Ly consulted Mr Gajic. This is perhaps the primary challenge to the explanation provided by Mrs Ly. In respect to this period Mrs Ly says that she had suffered some disabilities by reason of the accident. Within a week she had shock, numbness, nightmares, flashbacks and was scared and anxious. Subsequently she was professionally diagnosed with depression. But she says that although she recognised these adverse impacts on her she did not believe she could claim and was not told otherwise. 29In my view this is a full explanation of the delay. Her relevant "knowledge and belief" comprised her symptoms and her belief about her inability to claim. Her relevant "actions" included not being informed that she possessed an entitlement to claim but that Andy did and she made a claim on his behalf. 30Whether Mrs Ly's explanation is satisfactory is a separate question. It involves an assessment of what a reasonable person would do in her position. In my view, that test involves attributing to the reasonable person knowledge, beliefs and actions of Mrs Ly except for her actions in delaying her claim. In that event, a reasonable person who believes that she has suffered some psychological injury but believes that she has no entitlement to claim for such injuries, and who consults a lawyer about her injured son and is advised to make a claim for him and does so and is not told to claim for herself, and who has some unfamiliarity with the language and (I would infer) the legal system is, in my view, justified in delaying making a claim. For this reason I find the explanation satisfactory. 31Fourthly, the Insurer challenges the indefinite reference in the explanation to "shortly after the accident" which is referred to by Mrs Ly as a period she first suffered mental harm. I do not see any inadequacy in these terms, particularly when they are clarified by the succeeding words "maybe a week after the initial shock", which I infer to be a week after the accident. 32The fourth challenge also focuses on the evidence of Mrs Ly that she "could not recall" Ms Nguyen advising her that she could claim for her own loss. I do not regard this as significant. It seems to me to represent a recognition that recollections of conversations two and a half years later are inevitably inaccurate to a greater or lesser extent. Mrs Ly was affirmative in other parts of her evidence that she had never had a discussion about her shock. Also in an earlier recollection during her first conference with Mr Gajic in November 2011 she appeared to confirm more definitely that she was not told about any entitlement to claim. 33Fifthly, the Insurer raised but subsequently abandoned any challenge to the explanation insofar as it related to the conduct of Gajic Lawyers. 34Sixthly, the Insurer challenged the indefinite time at which Mrs Ly visited the psychiatrist, Dr Nguyen. This is not significant as it made no difference to the delay. Mrs Ly took no point about there being a delay in the onset of her mental harm. Her case was that she was aware of her damage but she did not believe she could claim in respect of it. 35Finally, the Insurer also criticised Mrs Ly's explanation for not detailing consultations with treating doctors. In my view this is not required. Mrs Ly is not required to elicit every corroborative piece of evidence to prove her explanation, at least not in this particular application. She was not cross-examined, and the Insurer led no evidence to contradict her explanation. Thus, the question was whether her uncontradicted account is a full and satisfactory one, not whether it is supported by other possible witnesses. Although the Insurer bore no onus in respect of Mrs Ly's explanation, if the Insurer wanted to dispute the truth of the explanation it could do so by eliciting evidence utilising subpoenas to the legal and medical advisers of Mrs Ly. It did not do so principally because there was no challenge to the truth of Mrs Ly's explanation, only to whether it was full and satisfactory. I do not regard the failure of Mrs Ly to lead further evidence as establishing that her explanation was in any respect not full or unsatisfactory. 36For all these reasons I have given I am persuaded that the explanation given by Mrs Ly is a full and satisfactory explanation of the delay and that the Insurer's application should be dismissed. 37That brings me to the question of costs. The Insurer says that it should receive its costs in any event. The plaintiff says that it should receive its costs as it was successful on the application. Holt v Wynter (2000) 49 NSWLR 128 is authority for the proposition that if a plaintiff allows the limitation period to expire and the Insurer's opposition to an extension is not unreasonable the Insurer is generally entitled to costs. 38The plaintiff made no deliberate decision to allow the time period to expire. In this case the six month period expired because the plaintiff was unaware of any entitlement to claim whether within six months or otherwise. 39The plaintiff has the benefit of rule 42.1 of the Uniform Civil Procedure Rules 2005 in that as a general rule costs follow the event and the plaintiff has succeeded on the application. 40I considered the application of Holt v Wynter and rule 42.1 of the Uniform Civil Procedure Rules 2005 in Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26]-[41]. In the circumstances, it seems to me the proper order should be that the plaintiff's costs of the application be the plaintiff's costs in the proceedings: if the plaintiff is successful in the proceedings it will likely recover its costs of this application, if not, each party will likely bear their own costs of this application. 41The parties have also asked for me to list both this matter and Andy's matter, number 258813/2012, before the Judicial Registrar and I do so. 42Accordingly, the orders of the Court are: (1)Defendant's notice of motion (filed 19 March 2013) be dismissed. (2)Plaintiff's costs of the application be the plaintiff's costs in the proceedings. (3)Stand over for directions on 9 September 2013 at 9.30am before the Judicial Registrar.