HIS HONOUR: On 18 January 2016 the plaintiff filed a statement of claim, claiming damages for personal injury which she alleges she sustained when she was involved in a motor accident on 22 December 2013. The plaintiff alleges that at the relevant time she was a passenger in a motor vehicle owned and driven by the defendant. On 10 March 2016 the defendant filed a notice of motion seeking that the statement of claim be dismissed for a breach of s 72 of the Motor Accidents Compensation Act 1999 (MACA).
Section 72(1) of MACA provides this:
"A claim must be made within six 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."
Section 73(1) of MACA 1999 provides this:
"A claim may be made more than six months after the relevant date for the claim under s 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."
In deciding this case, I have carefully borne in mind what fell from Giles JA, with whom Ipp JA, concurred in Buller v Black [2003] NSWCA 45 at [95] and that which fell from Allsop P in Walker v Howard [2009] NSWCA 408 at [64] to [69] and what fell from Young JA, in the same case, at [132] to [135].
To understand what has happened it is important to bear in mind the plaintiff's background, in particular, her education and experience of life and her culture. However, one should also carefully bear in mind that the motor accident, occurred on 22 December 2013 and that the plaintiff's claim was made on 14 November 2014 and served upon the defendant's insurer by Express Post on 18 November 2014 - in other words, the claim was made within one year of the motor accident in question.
I turn then to the plaintiff's background. The plaintiff was born on 6 September 1966. She is currently 49 years old. She was born in Iraq. She is an Assyrian. Her native language is Assyrian. However, because she was born in Iraq, where the language of the vast majority is Arabic, she is also fluent in Arabic. The plaintiff is an adherent of the Ancient Assyrian Church of the East. She is one of eleven children. She was the seventh born of the eleven siblings. She attended primary school in Iraq, but has had no formal schooling beyond that. Her education stopped when she was 12 years old. She appears to have lived her early life in a village called Sheladzh which is not far from Mosul. In or about 1988, when the plaintiff would have been either 21 or 22 years old, her family moved from Sheladzh to Talkeef which is closer to Mosul.
In Talkeef the plaintiff worked between 1988 and 1998. Initially, she worked in a food processing business for about 12 months. She then worked in a business making confectionary, but that only lasted a few months. She then obtained work as a cook for the military, but that only lasted about one year, until one of the Gulf wars commenced. When the Gulf war in question started, the plaintiff stayed at home and "kept low". She then had a series of short term jobs punctuated by periods of unemployment. Some of those jobs were working at home doing piece work. One of her jobs in 1991 was in a factory as a cleaner, initially, and then as a process worker putting labels on bottles of medicine. She had a job for two and a half years in a factory making potato crisps that was closed in about 1995 by the then dictator of Iraq, Saddam Hussein. Apparently this was because of economic sanctions. However, the work was then carried out by her at home as piece work. In either 1995 or 1996, the plaintiff obtained work in a business which she described as "large", essentially work as a shop assistant selling dairy products. That lasted only a few months. After that, the potato crisp factory reopened and she worked there fulltime for a little over two years until 1998 when she married Shamoon Eskharya.
The only inference to draw from the evidence is that Mr Eskharya is also an Assyrian and also an adherent of the Ancient Assyrian Church of the East. On 15 September 1999, their first child, a son, was born. A daughter was born on 5 March 2007. After marriage the plaintiff did not work in Iraq, but was closely involved with her local church and she told me that she helped teach young parishioners the Assyrian language. In a statement which the plaintiff made on 26 February 2015, she said that between 2003 and 2009, there was a great deal of violence in Iraq and she saw many distressing events while living with her family in Mosul.
The plaintiff and her husband decided to emigrate. In 2011 they moved to Jordan and were categorised as refugees by the United Nations. Having been accepted as refugees by the United Nations, they applied to come to Australia and were successful. The plaintiff and her husband and children arrived in Australia on 31 July 2012. When the plaintiff arrived in Australia, her mother, three of her brothers and two of her sisters were already resident here. On 28 October 2013, the plaintiff commenced studying a course known as "Orientation to Employment" offered by Navitas, which I understand to be the provider of many services to refugees and recent migrants. In addition to that course, the plaintiff studied English. However, up until the time of the motor vehicle accident now in question, she had not found any employment and her level of English was not particularly good. According to the statement of the 26 February 2015, the plaintiff had studied English for about seven months.
The defendant is also an adherent of the Ancient Assyrian Church of the East. She lives at Fairfield. She is a disability pensioner. On 22 December 2013, the defendant had consumed medication for breast cancer, hypertension, atrial fibrillation and an unspecified stomach condition. She had been taking such medication since 2005. On Sunday 22 December 2013, the defendant left her home shortly before 8.30am and drove to St Zaia's Cathedral at Middleton Grange. On that particular morning she was attending what she described as "a third day funeral service" at that cathedral church. She said that it was common in her culture to make a religious observance at that time. After the service at the cathedral, she was asked by Mrs Najat Talia if she could drive not only her to the cemetery, but also another person. That other person was the plaintiff.
According to a statement made by the defendant on 5 March 2015, she later ascertained that the plaintiff was, "related to my mother's cousin by marriage." The plaintiff sat in the front seat of the defendant's vehicle. They drove to the Forest Lawn Cemetery which was on the Camden Valley Way at Leppington. The defendant's statement continues thus:
"23 I turned into the cemetery grounds and continued to drive towards the area where we had to go. I was driving at a very slow speed, I estimate I was not driving faster than 20 kph. I do not know how far I had driven into the cemetery grounds, however, it was around 5 minutes after I had entered the cemetery grounds when the incident occurred.
24 I recall moments before the incident occurred, I was looking around trying to see the people from the church service. I remember as I turned right into a narrow street, I suddenly went over the kerb. I panicked and did not want to move the car in case I caused any further damage. I believe I would have been driving around 10 kph when I turned into that corner.
25 I know that Nahren's car is fitted with air bags on the driver and front passenger side. The air bags did not deploy due to that incident.
26 I recall immediately after that incident I asked Julie [Yawanis, her sister] if she was okay and she said, 'yes'. I did not have any injuries as a result of the incident. I recall that woman [the plaintiff] making comments that she was having chest pain. She seemed to me overreacting by the way she was placing her hands over her chest."
I can foresee that the defendant, if she gives evidence, might be cross-examined about the circumstances of the event in question. According to the COPS Event, the relevant speed limit was 10 kph and the defendant's pre-crash speed was 40 kph. Streets in cemeteries are generally quite narrow, usually only admitting one-way traffic. Furthermore, it should be noted that there is strong, contemporaneous evidence of the plaintiff's having at least what could be described as a seat belt injury following upon this motor accident.
On the following day she saw Dr John Atto at the Ware Street Medical Centre at Fairfield. The plaintiff appears to have been attending upon that clinic since her arrival in Australia. The history recorded by Dr Atto is this:
"Yesterday at about 12 midday she was involved in an MVA as a front seat passenger with seat belt on, close to the Ancient Assyrian Church of the East, when the driver hit an island in the street. She had acceleration/deceleration injury and had severe anterior chest and left shoulder and left abdomen/loin pain with bruising and shortness of breath. She was taken to Liverpool Hospital by ambulance: ECG, NAD, CXR and L shoulder X-rays: no acute fractures. Now she has neck pain radiating to the left shoulder and left upper limb with numbness plus anterior chest and a left breast pain and low back pain and coccygeal and left anterior pelvic/left inguinal fossa pain, tenderness and bruising plus dizziness, fear of travelling by car plus nightmares."
On the following day the plaintiff had a whole body scan performed by Dr Lin Chan at Dr Atto's request. That is said to show a recent fracture across the upper sternum. There was marked linear increased osteoblastic activity across the upper sternum corresponding with a fracture line on low dose computerised tomography. In other words, it appears there was a fracture to the upper sternum at the time of this motor vehicle accident, probably where the seat belt passed over the plaintiff's chest. Furthermore, the notes of the Liverpool Hospital, where the plaintiff had been taken by ambulance from the cemetery, show that the plaintiff was reluctant to cough due to pain in the chest and that there was bruising below the left clavicle and left sided chest wall tenderness: again consistent with a seat belt injury. The Emergency Department notes say that a formal report was outstanding for the radiological investigations made at the hospital but confirms that there was "no acute fracture." However, it is clear that the plaintiff was having chest pain, because the hospital staff were looking for evidence of a pneumothorax, a collapsed lung. I am afraid that the defendant's fears of the plaintiff exaggerating are not founded in fact.
The plaintiff was referred by Dr Atto to a number of specialist practitioners. On 31 December 2013, Dr Atto referred the plaintiff to Professor Bruce French. That appears to have been specifically for the fracture of her sternum. On 10 January 2014, the plaintiff was referred to Dr Anthony Sanki and also to Mr Shameran Younin, a psychologist. She was sent to Dr Sanki because of various orthopaedic complaints and to Mr Younin because of what Dr Atto diagnosed as an adjustment disorder with depression and anxiety. In evidence before me is a letter from Dr Sanki to Dr Atto dated 21 February 2014. The plaintiff must have seen Dr Sanki on that day or shortly before then. Dr Sanki suggested that the plaintiff obtain legal advice. Dr Sanki suggested that the plaintiff attend upon Gajic Lawyers and there is a note indicating that the plaintiff was referred to that firm on 21 February 2014.
On 27 February 2014, the plaintiff was seen by Mr Andrew Le of Gajic Lawyers. Once upon a time lawyers made file notes. Now they appear to send emails containing what would have been in a file note to other members of the firm, no doubt to be included in a computer file. Mr Le mistakenly recorded the date of the accident as being 22 September 2013, but that initial mistake is of no consequence. It records that the driver of the vehicle was "her cousin" who was recorded as being "N-h-r-e-e-n" which is another way, no doubt, of spelling N-A-H-R-E-N, who is the defendant's daughter and probably the owner of the motor car. The plaintiff was also able to provide to Mr Le a mobile telephone number. Mr Le recorded that the plaintiff had been referred to Dr Sanki who then advised the plaintiff to see Gajic Lawyers. Under the heading "Preliminary Advice" Mr Le recorded this:
"Obtained copy of CT report from client which showed fractured sternum and degenerative diseases in other parts of the body.
Advised client to provide to me COPS Event number ASAP. She will get back to me early next week so I can request a police report.
Advised of six months limitation period of [sic, scil. to] lodge claim form. Client was aware of limitation period.
Advised client to [urgently] see her doctor and get a completed medical certificate to support the Claim form.
Provided Claim form to client."
The COPS Event number was in due course provided to Gajic Lawyers because on 5 March 2014, the lawyers wrote to the NSW Police force requesting a copy of the police report. The medical certificate to accompany a Claim form was taken to Dr Atto who completed it on 28 February 2014, that is, on the following day. The email sent by Mr Le to Mr Gajic clearly indicates that prior to the interview with Mr Le, the plaintiff was aware of the limited time for the lodging of the claim form, that is, of the requirement to lodge a claim within six months of the occurrence of the accident.
On 5 March 2014, Mr Le caused to be sent to the plaintiff a letter of 14 pages, providing comprehensive advice. The first paragraph of the letter is this:
"We refer to the above matter and confirm your instructions for us to manage and pursue a Motor Accident Compensation Claim on your behalf in relation to injuries sustained in a motor vehicle accident on 22 December 2013."
Clearly the mistake in the email as to the date of the motor vehicle accident was promptly corrected. In par 10 of the letter, there is reference to the "insurer of the driver at fault" paying for treatment expenses. Again, in the following paragraph there is reference to "the insurance company" rejecting treatment expenses and what might happen thereafter. In par 15, the first paragraph under the heading, "If you are working at the time of the accident", there is reference to the "insurer." Again, between par B20 and par B21, there is a heading, "If the insurer denies to fund your treatment expenses." I have cited those matters to show that the advice being offered the plaintiff was that the defendant was insured that the insurer would attend to the payment of the claim.
On p 9 of the letter is a heading, "Notice of Claim - 6 months" and beneath that is stated this:
"You are required to complete a claim form to give notice of your claim to the driver/owner of the vehicle at fault and his/her insurer within 6 months of the accident.
If notice of claim is not given within 6 months of the accident, you will be required to provide an explanation for delay in making your claim. If the explanation is not full and satisfactory, you may lose your right to claim."
On p 12 there is a heading, "The insurer accepts liability" and on the following page there is a heading, "The insurer denies liability" and under each heading are a number of paragraphs indicating the course of action which would be adopted when the insurer of the defendant made any decision concerning liability.
On 2 April 2014, a paralegal from Gajic Lawyers, Ms Viki Cvetkovic called the plaintiff at 11.33am in order to make an appointment for her to come to the office of the law firm in order to "do her claim form." The file note continues thus:
"She spoke broken English and said to me, 'no, no more, I don't want to do this, finish.'
I asked her why and she replied, 'no, no more'.
I said, 'OK thank you, I will tell the solicitor' and we ended the conversation."
The file note continues by Ms Cvetkovic asking the principal of the firm, Mr Rad Gajic, whether he proposed to close the file. On the same day, Mr Gajic sent an email to Ms Cvetkovic asking that Mr Joseph Yousif call the plaintiff to communicate with her. Mr Yousif is a lawyer who speaks Arabic. Later on the same day, Ms Cvetkovic provided Mr Yousif with the plaintiff's telephone number. Eventually Mr Yousif spoke to the plaintiff on 5 May 2014. The email that he generated as a file note says this:
"I called this lady and spoke to her for about 10 minutes as to the reasons why she does not wish to proceed with her CTP claim.
Initially she said that she cannot pay us any money to which I explained to her that we are 'no win, no fee' firm which means if her claim is not successful and she does not recover any compensation, there will be no fees from our firm. I advised her how fees work for the majority of the conversation and I asked her if she now wishes to proceed with the claim? She then said that another reason for her instructions to close the file was that her husband does not want her to make [a] claim for compensation. I gave her the opportunity to speak to her husband and provide us with further instructions, but she rejected the idea and confirmed that she does not wish to proceed with her claim.
Let me know if this is enough for your purposes."
The evidence of the plaintiff confirms that the conversation that she had with Mr Yousif was in Arabic, a language she understood.
Very diligently, Gajic Lawyers then wrote to the plaintiff on 4 June 2014. The letter appears to have been written by Mr Andrew Le. He referred to the conversation between the plaintiff and Mr Yousif on 5 May 2014. The letter provides 11 numbered paragraphs setting out the advice of the lawyers. Paragraphs numbered 2 and 3 are these:
"2 You are required to complete a claim form to give notice of your claim to the driver/owner of the vehicle at fault, and his/her insurer within 6 months of the date of the accident. In your case you have until 22 June 2014. We confirm that a claim form has not yet been lodged. We enclose herewith original, executed Personal Injury Claim Form Medical Certificate completed by Dr John Atto on 28 February 2014.
3 If you do not lodge your claim form by this date you will need to:
(a) Provide an explanation for the delay to the insurance company; and
(b) File an application for special assessment with the Claims Assessment and Resolution Service (CARS) for making a late claim. The claim can be rejected or accepted by the Assessor;
(i). If the claim is rejected, you will not be able to pursue your claim.
(ii). If the claim is accepted/or granted leave, you will be able to make a claim against the driver/owner of the vehicle at fault."
The plaintiff did not lodge a claim by 22 June 2014.
The next relevant event occurred on 11 November 2014. On that day Dr Anthony Sanki contacted Gajic Lawyers and advised them that the plaintiff wished to proceed with the claim which she had not previously pursued. That information was conveyed by Dr Sanki to Ms Cvetkovic. Ms Cvetkovic then generated a file note. It gave the plaintiff's name, address and telephone number and then says this:
"CTP Client. I noticed the name and I realised that this is a previous client that we closed the file back in June.
Dr Sanki advised that the husband is the one that did not allow for her to continue her claim and now she definitely wants to proceed. Dr Sanki requested for a home visit as she doesn't have a car and cannot come to our office."
There is further material in the file note that I need not quote. On the following day, Ms Cvetkovic arranged for Mr Le and an interpreter to attend at the plaintiff's home on 14 November 2014. That occurred and the claim form was completed. As I said earlier, the claim form was sent to the insurer of the defendant under cover of letter dated 18 November 2014.
Some understanding of what may have been relevant is a custom amongst Assyrians called "Qariewee". In a statement made by the defendant on 10 July 2015, this is stated:
"11 In my culture in Iraq, we have a very old custom called Qariewee, where the man's family will be registered as the best man/bridesmaids for another family in the same village for a whole generation. The tradition continues even if the families move from the village."
In oral evidence it was stated that the registration is by the Church and the Church somehow blesses the relationship between the two families. This may represent the ancient practice of Christianising pre-Christian pagan practices as the institution described by the defendant, and also by the plaintiff and her husband, is not a Christian institution. In the same statement of the defendant she went on to say this:
"John Talia is married to Najat. Najat is not my blood cousin, but she is a very close family friend and her husband John his family is my family's Qariewee (bridesmaid/best man). Samiya Mano is married to John's nephew, but I do not know his name."
It can be seen from that statement that the Qariewee relationship between the plaintiff and the defendant is extremely remote, in fact barely tenable. In par 14 of the same statement, the defendant said that she did not know the plaintiff or her husband prior to her giving a lift to the plaintiff to the cemetery on 22 December 2013 and that there was no familial or other relationship that could be broken down between the defendant and her family and the plaintiff and her family.
In her affidavit affirmed on 1 April 2016 the plaintiff said this:
"30 I am Assyrian and have a strong Iraqi cultural background. I was born in Iraq and spent 45 years of my life there. My husband shares my cultural background.
31 It is an established tradition in my culture that the husband's will must be followed without question. My husband was the head of the household and church doctrine and custom give him authority over me, as his wife. As his wife, I am expected to lead a life of obedience and service.
32 In my culture, your family is the most important thing and that includes the extended family or tribe. Loyalty to the family is of paramount importance.
33 I would see the defendant's family at functions at our community, at family gatherings and church. I regularly attended St Zaia's church in Middleton [Grange] and the defendant's family attend the same church.
34 My husband's family are the defendant's family's Qariewee (bridesmaid/best man). My husband's uncle, John Talia, is the defendant's Qariewee. It's a custom that in an Iraqi village a family will be connected to another family as the best man/bridesmaids. The tradition continues to operate even if the families move away from the village. The families remain connected.
35 The defendant and her family are considered high in the family and are highly regarded as elders. The defendant and her husband are considered elders who give approval and speak for the family when it comes to a marriage, christening and family breakdown."
Commencing at [52] the plaintiff said this:
"52 My husband did not allow me to lodge a claim for compensation. My husband threatened to divorce me if I pursued my claim. Divorce is frowned upon in my culture and my community was important to me. I was part of a small cultural community. I have only migrated to Australia in 2012 and I did not want to be involved in a legal dispute with anyone, particularly family."
At [55], the plaintiff re-iterated that her husband did not allow her to lodge a claim and he was adamant about that. She said that for her it was important to respect her husband's decision as her husband was "the head of the household."
The plaintiff's husband affirmed an affidavit on 1 April 2016 as well. In [9], he asserted the tradition, cultural value and religious doctrine that the husband was the head of the household and had authority over his wife who was expected to give him obedience and service. Commencing at [23] the plaintiff's husband said this:
"23 I did not want my family and community to think that my wife was suing another member of the Qariewee. I did not understand who the claim was being brought against. I thought that it would be perceived as money hungry and that my wife was willing to damage the family for her own gain. I did not want problems caused within the tribe.
24 It is a small cultural community and I did not want the community to be talking about my wife and her claim. There were rumours that my wife was labouring her injuries in order to make a claim. I was of the belief that if my wife made the claim then it would disgrace the family and we would look disloyal to the tribe. I felt that it would bring great shame and would be embarrassing.
25 I did not allow my wife to lodge a claim for compensation. I told her that if she lodged a claim, I would divorce her as she would be causing a rift in my family. I have only migrated to Australia in 2012 and I did not want my wife to be involved in a legal dispute with anybody, particularly my Qariewee."
If the plaintiff's husband effectively prevented her from lodging a claim, then one must ask oneself what made him relent? In a statement made by the plaintiff's husband on 12 June 2015, he said this:
"23 On or about 24 October 2014, she saw Dr Sanki and he again suggested that she see lawyers because she was not getting better.
24 My wife discussed this with me but I was still against the idea. However, given I have come to realise that her injuries are real and permanent, seeing her suffering and given the deterioration within the family with Merlatia [Rasho], I let my wife decide if she wanted to make a claim. I was not comfortable with it, nor did I approve it, but I did not oppose it given the circumstances. Her injuries were costing us money as we had to pay for her medical treatment as well as petrol for regularly driving her to medical appointments. It had become a financial burden."
In the affidavit which he affirmed on 1 April 2016 at [28], the plaintiff's husband referred to his wife's injuries as "significantly" deteriorating and then his need to perform more household tasks and drive his wife to appointments. Then he refers to the relationship between the defendant's family and his breaking down in 2014. Thrown into those facts are some other facts which would have been well known to the defendant's cousin.
Many of the complaints now made by the plaintiff have been made by her in the past prior to this motor vehicle accident. The plaintiff appears to have first attended upon Dr Atto on 26 September 2012. She was complaining of recurrent right occipital headache associated with intolerance of noise. She also complained of recurrent dizziness which was not related to her headaches. She had also had symptoms of an upper respiratory tract infection over the five weeks since her arrival in Australia. She also complained of pain over the left first metatarsal phalangeal joint "following being hit by a car" a few years previously. The diagnoses made at the time were of hypotension, ischemic heart disease, tension headache and obesity. The next attendance was on 2 October 2012 when chronic sinusitis was complained of as well as shortness of breath and a problem with the right breast. On 6 October, the plaintiff complained of symptoms of lethargy, fever and malaise but the main problem appears to be in the otorhinolaryngeal area.
On 12 November 2012, the plaintiff complained of low back pain radiating into the right leg with numbness for one week which was worse with exertion. The doctor made positive findings on examination consistent with referred symptoms from the low back into the right leg. For example, there were reduced reflexes at the right knee and reduced right ankle jerks and a positive femoral nerve stretching test. Dr Atto diagnosed lumbar disc disease and right sided radiculopathy. There have been many subsequent attendances upon Dr Atto or his colleagues at the Ware Street Medical Centre for low back pain. On 17 January 2013, there is complaint of pain on the neck and the plaintiff was worried about her thyroid gland. On 25 March 2013, Dr Atto raised the prospect of the plaintiff's suffering from sleep apnoea. On 3 May 2013, the plaintiff complained of depression following the death of a relative in Iraq. On the same day she also complained of frontal headaches associated with dizziness as well occipital headaches and sinusitis. On 8 August 2013, the plaintiff was diagnosed with an irritable bowel syndrome and with morbid obesity, but the plaintiff's initial presenting complaint was this:
"Stressed out as her husband is not coping in Australia and that is affecting her (she is happy in Australia)."
On 29 August 2013, there was a complaint of pain in the chest and over the right upper jaw and the diagnosis made was of right mastalgia and of right costochondral joint pain. She needed to have surgery to her upper jaw and became worried about surgery and in particular anaesthesia because she had previously suffered side effects after undergoing anaesthesia. That led Dr Atto to diagnose an adjustment disorder with depressed mood on 3 September 2013.
The plaintiff clearly had lumbar degenerative disc disease prior to this motor vehicle accident. It is also highly likely she had cervical degenerative disc disease prior to this motor vehicle accident. She had complained of those areas of her body before that accident. No doubt her husband was well aware of such pre-existing complaints and may have expected them to pass away as they seem to have done from time to time in the past. However, the thrust of the evidence of the plaintiff and the thrust of the evidence of the plaintiff's husband is that they did not go away on this occasion and that, in essence, is what caused the plaintiff's husband to relent in his opposition to the plaintiff's proceeding with a claim for motor accident compensation.
As well as statements that both the plaintiff made and her husband made in their affidavits, both the plaintiff and the defendant gave viva voce evidence. I was not particularly impressed by the plaintiff's evidence, but I certainly believe that cultural factors played a large part in her presentation and I think she felt overawed by the authority figures in the Court, such as Counsel and myself. I believe that she found it difficult to understand what was occurring and that is consistent with her poor level of education and the menial work which she had in her native land.
I was even less impressed by the evidence of the plaintiff's husband. Quite frankly a lot of what he said was mendacious. He wanted me to believe that when his wife was first interviewed by Mr Andrew Le on 27 February 2014, he did not accompany her to the interview but stayed downstairs in a reception room. However, in his affidavit of 1 April 2016, Mr Eskharya attested to this:
"20 On 27 February 2014, I attended the Cabramatta Offices of Gajic Lawyers with my wife. We saw Andrew Le, solicitor. My wife told Mr Le about the accident and her injuries. I cannot recall the exact conversation that took place at the appointment.
21 There was no interpreter at the appointment. I can recall that I had difficulty due to my limited ability to speak and understand English."
Nevertheless he asked me to believe that she wasn't present in the interview, evidence which I do not accept at all. Much emphasis was laid on the relationship of Qariewee. I do not accept the evidence of either the plaintiff or her husband in regard to it. It appeared to me to be put forward as a pretext for not making the claim, a pretext in fact relied upon by the plaintiff's husband, more than by the plaintiff herself, and probably in an attempt to mask his intransigence in insisting that his wife not make a claim. That is consistent with what the defendant said in her statement of 10 July 2015.
However, I am prepared to accept that the plaintiff's husband did not want her to make the claim and that is why the plaintiff initially desisted in making the claim. The clues to that of course are these. Firstly, when the plaintiff spoke with Mr Yousif in Arabic, after raising the question of costs, the plaintiff told Mr Yousif that her husband did not want her to make the claim. I am shortly to celebrate spending 40 years in the law. If anyone wants to argue with a lawyer as to why something should not be done, one always raises the question of cost. If a person is asked why he or she did not consult a lawyer, undoubtedly, no matter what the cultural background of the person asked, the first excuse for not consulting a lawyer is the perceived cost. I do not accept that the plaintiff herself really was worried about costs but when she offered that excuse to Mr Yousif, she did so in order to try to hide the reality, the reality being the other reason that she was not making the claim was intransigent of her husband and her need to obey his decision. Secondly, this is essentially the intelligence communicated by Dr Sanki to Ms Cvetkovic when he phoned her on 11 November 2014 telling her that the plaintiff again wished to proceed with her claim.
Another factor which I take into account is what the plaintiff told Dr Atto back on 8 August 2013, that the plaintiff's husband was not coping in Australia, whilst she was happy, but her husband's inability to cope with Australian society was causing her problems. Initially, I was very unimpressed by the assertions made by the plaintiff and her husband, that they thought the claim was to be made personally against the defendant, rather than, in essence, against an insurance company. Clearly, the letters spelt that out to the plaintiff and her husband if the letters were read to them properly. However, even if the plaintiff realised that the defendant herself would not have to pay any damages, if the plaintiff's husband was not coping in Australia, he might therefore have been suspicious of Australian institutions, he might not accept that the defendant would be wholly indemnified by the insurer and that she might be liable to some impost. Although equally, I do not accept that there was any relationship of any moment between the plaintiff's family and the defendant's family, I can understand that the plaintiff's husband, if he attended church, might be upset by gossip amongst the Assyrian community.
I accept therefore that the plaintiff did not pursue her claim, not because she did not wish to do so and not because she did not know the effect of what not making the claim within six months might have on her, but rather, she did not do so because her will was overborne by her husband's will and her perception that she must obey him. But, fortunately, he relented in his determination that she should not pursue the claim.
Under MACA, the plaintiff is required to provide a full and satisfactory explanation for her non-compliance with the obligation to make a claim within six months. Under s 66(2), this is provided:
"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."
In Walker v Howard [2009] NSWCA 408, Young JA said, at [146]:
"Thus, returning to the instant case, when one is comparing the claimant to a reasonable person in a position of the claimant, by analogy of reasoning with the provocation cases, one transfers across the basic characteristics of the claimant to the hypothetical reasonable person, that is, the claimant's age, sex, cultural background and capacity. One does not transfer across the claimant's particular emotional characteristics, such as his or her ability to control anger, be a wishful thinker or dreamer, a persistent ditherer or a person who is well known to be slow in reaching a decision or taking action."
I must take into account a person in a position of the plaintiff's cultural background. She is an Assyrian, married woman who believes that she must obey and serve her husband, that she must obey any decision made by her husband concerning her and that included her ability to pursue a claim. Bearing in mind that and her husband's intransigence, I accept that the delay in making the claim was reasonable in the particular circumstances of the present plaintiff.
Accordingly, it appears to me that the current motion before me ought be dismissed and I do dismiss it.
[2]
Application for costs
The remaining question concerns costs. The power to award costs is now contained in s 98 of the Civil Procedure Act 2005. It is clear that the plenary grant of power contained in s 98, permits this Court to make an order for costs against a person who is not a party to the proceedings: Knight v FP Special Assets Ltd (1992) 174 CLR 178; Aiden Shipping Company Ltd v Interbulk Ltd [1986] AC 965; NSW Insurance Ministerial Corporation v Edkins (1998) 45 NSWLR 8 and FPM Constructions v The Council of the City of the Blue Mountains [2005] NSWCA 340.
The plaintiff needed to defend her proceedings because her husband had prevented her from complying with her statutory duty. In those circumstances, it appears to me that the person who should pay the costs thrown away by the current motion is the plaintiff's husband. He, however, is not a party to the proceedings, nor has he been advised that an order of costs might be made against him. It appears to me that I should order that the costs of this notice of motion incurred by the defendant should be paid by the plaintiff's husband.
I accordingly require the plaintiff's husband to show cause why costs of the current notice of motion should not be paid by him. I leave it to the defendant to make the necessary procedural arrangements. They appear to me to be a notice of motion seeking costs against him of the notice of motion which I have dismissed, which is to be served upon him as if it were an initiating process, together with such evidence as the defendant wishes to rely upon, which may include a copy of my reasons once they have been transcribed.
I have now read the reasons given by Mr Hugh Macken on 31 August 2015, sitting as a CARS assessor, as to why he rejected the late claim that had been made by the plaintiff. Essentially, the plaintiff advanced same reasons to CARS as she did to me. The point of departure appears to be in Mr Macken's view, this:
"The justification for the delay has at its root, a lack of any attempt to ascertain the true consequences of completing and submitting a Claim Form. There is no material to justify any allegation by bringing a claim would cause any financial distress to the insured driver. Indeed, the insured driver denied she had any close association with either the claimant or her husband. The reason why the claimant didn't put in a Claim Form was because she was instructed not to by her husband."
However, that fails to grasp the problem that the person who did not understand the consequences of submitting a claim form, was not the plaintiff, but the plaintiff's husband. In the following paragraph of his reasons, Mr Macken dealt with the plaintiff's submissions as to her cultural background and "tradition". He then said this:
"That said, there is nothing in the material to support a contention that a reasonable person in the position of the claimant would seek to take any further steps either by way of further discussions or ascertaining what the consequences of lodging a claim were, particularly when they were made aware of the limitation period."
The use of the plural pronoun is unfortunate because it does not make it clear whether he is referring only to the plaintiff or to the plaintiff and her husband. However, the fact remains that whatever reason the husband had for refusing the plaintiff permission to make the claim, that was something beyond the plaintiff's control. Eventually, she appears to have persuaded her husband to relent. That is fortunate for her. However, Mr Macken ought to have considered what the claimant could do if her husband were adamant, intransigent, insisting on having his will followed, rather than permitting the plaintiff herself to exercise her will.
The plaintiff did not advance before me a case different that which she advanced before Mr Macken. In those circumstances, the defendant should pay the plaintiff's costs of the motion. The defendant can seek to recover those costs, as well as her own, from the plaintiff's husband.
The parties may, of course, vary by consent any order for costs that I have made. I am aware that the costs order which I have indicated might be made against the plaintiff's husband, could lead to matrimonial discord and disharmony. It may well be that the plaintiff might consider in the alternative, offering to pay the defendant's costs of the motion to save such marital disharmony.
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Decision last updated: 08 July 2016