Solicitors:
Brydens Law Office (Plaintiffs)
Sparke Helmore (First Defendant)
Hall & Wilcox Lawyers (Nominal Defendant)
File Number(s): 2018/00208539; 2018/00208547; 2018/00208604
[2]
Judgment
Before the Court for hearing are a number of Notices of Motion. These relate to a motor vehicle accident involving the plaintiffs which occurred on 11 July 2015. One Notice of Motion has been filed by each of the plaintiffs and one Notice of Motion has been filed by the second defendant, NRMA Insurance for the Nominal Defendant.
In terms of time, the first Notice of Motion is that filed by NRMA Insurance on 5 April 2019. It seeks orders in substance that the plaintiffs' Amended Statement of Claim as against the Nominal Defendant be dismissed because of a breach of s 109 of the Motor Accidents Compensation Act 1999 (NSW) ("MACA") and secondly, that the Amended Statement of Claim be dismissed against the second defendant for breaches of a number of different provisions of that same Act. In essence, it is submitted by the second defendant that the plaintiffs have breached a number of provisions of MACA being in summary:
1. That the claim forms submitted against the Nominal Defendant did not comply with the provisions of MACA;
2. That the claim forms were lodged outside the relevant statutory period in s 72 of MACA;
3. That the claims against the second defendant were filed more than three years after the date of the accident;
4. That there was not due inquiry and search by the plaintiffs complying with ss 34 and 34A of MACA.
The plaintiffs in their Notices of Motion filed in each matter on 29 April 2019 seek findings:
1. That there has been due inquiry and search within ss 34 and 34A of MACA;
2. That there has been a full and satisfactory explanation provided by them for the delay in filing the proceedings and making the claims;
3. That any breaches of s 74 of MACA should be regarded as technical and of no significance within s 76(5) of MACA; and
4. That because of the requirements of s 109(3)(b) of MACA, that the total damages of all kinds likely to be awarded to the adult plaintiffs if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor vehicle accident.
The damages referred to in s 109(3)(b), being the amount for non-economic loss under s 134 of MACA, are set on 1 October each year. The accident in the present case happened on 11 July 2015. The amount relevantly set was on 1 October 2014 and was in the sum of $492,000. The relevant damages amount is therefore 25% of that, being $123,000. As s 109(4) of MACA makes clear, subsection (3)(b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. The plaintiff Mohammed Buhora, in proceedings number 2018/208539 is an infant and does not have legal capacity because of age. Therefore s 109(3)(b) does not apply to him. The financial requirement applies to the mother and the father.
On the applications a number of affidavits were read. In the plaintiffs' Notices of Motion, affidavits were read from Ms To, the plaintiffs' solicitor, affirmed 19 June 2019 and 4 June 2019 in each matter. In Mr Buhora's matter, an affidavit affirmed 12 August 2019 by Ms To was read without objection. In addition, there were affidavits read from Mr and Mrs Buhora about their particular circumstances and their particular knowledge of the legal proceedings.
Oral evidence was also given at the hearing by Mr and Mrs Buhora and by Ms To. Mr Buhora's English appeared to be limited and he seemed to have relied principally on his wife in relation to his dealings with the solicitors. He confirmed that prior to early 2017 he had heard nothing about a white vehicle being involved in the accident and nothing was mentioned to him by the drivers of the other two vehicles including the first defendant in the accident on the relevant day about a white vehicle.
Mrs Buhora, who I found to be an impressive witness, and who made some concessions against interest in relation to her telling employers about the accident, also was not aware of the white vehicle before early 2017 although her evidence is slightly less helpful on this because according to her affidavit evidence she stayed in the vehicle at the time of the accident and only emerged from it later, whereas it was Mr Buhora who spoke to the other two drivers who were involved in the accident. In summary, both Mr and Mrs Buhora had no knowledge of a white vehicle being involved in the accident until they were told of it, it seems, in early 2017.
Ms To gave evidence and was cross‑examined. Importantly, she gave evidence in relation to attempts made by Brydens, the plaintiffs' current solicitors, in relation to due inquiry and search, including seeking particulars from the solicitors for the first defendant, placing an advertisement in the Daily Telegraph to which she said there was no response, and also requesting particulars from the other driver, Mr Dilek. There was no helpful response to this request in relation to a white vehicle.
Mr Wilson, counsel for the second defendant, obtained some concessions from Ms To to the effect that she had not issued a subpoena for phone call records to the emergency services in relation to the accident (evidence establishes that emergency vehicles attended), had not made a GIPA application in relation to relevant information from the emergency vehicles, had not spoken to a passenger in the vehicle of Mr Khan and could not recall whether she knew that there was a passenger in the vehicle. She also conceded that she had not served a subpoena on the RTA, interviewed police or ambulance officers or sought CCTV footage. These matters were relied on ultimately by the second defendant as assisting in its submissions in relation to the lack of due inquiry and search.
In support of its Motion, the second defendant read three affidavits of Ms Zen sworn 1 November 2018 and filed on 2 November 2018. These affidavits had originally been filed in support of the application made in November 2018 to dismiss the proceedings against the second defendant because of a failure to comply with s 108 of MACA. Ms Zen's affidavits attach the personal injuries claim forms submitted by the plaintiffs in August 2015, attach the medical certificates for each plaintiff and attach relevantly the letter from the plaintiffs' solicitors to the Nominal Defendant sending the original claim forms and the s 81 notice from the first defendant denying liability and other relevant correspondence.
The affidavits also attach a statement apparently signed by Mr Khan, the first defendant, in which he states relevantly in paragraph 18 that he was in the centre lane travelling in a straight direction at approximately 60 kilometres per hour when he "was hit from behind from the vehicle I believe to be the white Toyota HiLux", which he had earlier referred to in paragraph 16 of the statement as being a vehicle stopped next to him at some traffic lights. It seems from the statement that the only basis for assuming that it was the white Toyota HiLux was the fact that the vehicle was next to him at the lights and when he moved in the lane where the Toyota HiLux was that he was hit from behind.
Curiously, he does not state in his statement that he ever told Mr or Mrs Buhora or anyone else about the existence of the white HiLux. This is consistent with Mr and Mrs Buhora's evidence. It is obvious that at any trial there is going to be a live factual issue about the cause of Mr Khan's vehicle hitting the plaintiffs' vehicle and Mr Dilek's vehicle.
One therefore looks at the issues which must be determined on these applications. The issues may be summarised as follows:
1. Whether the documents as sent to the Nominal Defendant by the plaintiffs' solicitors satisfy the requirements of ss 74 and 76(5) of MACA;
2. Whether there has been a full and satisfactory explanation by the plaintiffs for their delay in making the claim against the Nominal Defendant;
3. Whether there has been a full and satisfactory explanation for the delay in commencing proceedings under s 109(3)(a) of MACA;
4. Whether there is any prejudice to the second defendant from the delays;
5. Whether the amount in s 109(3)(b) of MACA has been satisfied in relation to Mr and Mrs Buhora, it being recalled that that is not a requirement for the child Mohammed; and
6. Whether there has been due inquiry and search by the plaintiffs within s 34 and 34A of MACA.
In order to consider these issues, it is necessary for me to set out in general terms the factual background as established by the evidence. The background facts as established are as follows. On 11 July 2015 Mr and Mrs Buhora and Mohammed were travelling in their car along Woodville Road, Woodville in Sydney in the State of New South Wales. On that day they were involved in a motor car accident. The plaintiffs say that they were struck a number of times by a car driven by the first defendant, Mr Khan, before Mr Khan's car was struck by a third car driven by Mr Dilek.
The plaintiffs referred to the fact that it is suggested that a white car, the Toyota Hilux, struck Mr Khan's car but that is not their primary case. At the time of the accident, Mr Buhora worked, it appears, as a pastry chef. Mrs Buhora was also in employment and the child, Mohammed, was several years of age. It is claimed that other persons referred the accident to the emergency authorities who attended the accident scene. However, it is asserted that the white HiLux motor vehicle did not remain at the scene of the accident. Mr Buhora claims that he exchanged details with the drivers of the other two vehicles involved of which he was aware at the time, being Mr Khan and Mr Dilek, and this is confirmed by the detail in the claim forms.
The plaintiffs reported the accident to police, it appears, on 20 July 2015. The plaintiffs also attended their general practitioner and had medical certificates filled out for the purposes of the claim forms. On 6 August 2015, the plaintiffs served their personal injury claim forms on Allianz Insurance Limited, the CTP insurer for the first defendant, through solicitors they had retained being Thomas Booler Lawyers.
The claim forms nominated the first defendant, Mr Khan, as the driver of the vehicle at fault and did not mention the white HiLux as they say that they were not aware of it at that time. There was an initial denial of liability by the first defendant under s 181 of MACA on 6 November 2015 as it was still investigating the matter. Further queries were made by the plaintiffs' solicitors Thomas Booler Lawyers on 31 August 2016, 16 September 2016 and in December 2016 but no further information in relation to a change of the first defendant's insurance decision was indicated.
In a letter from the solicitors for the first defendant Curwoods to Thomas Booler lawyers on 16 February 2017 the first defendant gave formal notice to the plaintiff under s 81 of MACA that liability was denied for all three claims. That document assumes some importance in the proceedings and provides that:
"Allianz's insured driver was struck from behind by an unidentified vehicle. This collision caused Allianz's insured driver to lose control of his vehicle. The unidentified vehicle then left the scene of the accident. An unidentified vehicle is at fault for the accident. A claim should be lodged with the Nominal Defendant."
Having received that letter from Curwoods Lawyers, on 3 March 2017 Thomas Booler Lawyers sent a copy of the original personal injury claim forms and attached medical certificates together with a copy of the s 81 notice from Curwoods to the Nominal Defendant. In that letter the delay was blamed on the insurer of the first defendant having taken some 18 months to determine its position. The point at that time was that every day that the plaintiffs delayed in relation to their claims put them further behind for the purposes of s 72 of MACA.
However, it is undeniably the case that the claim forms did not strictly comply with s 72 of MACA because they were not in the form in which the alternative claim relating to the white vehicle was to be based. It was clear at the time, that the plaintiffs were attempting to keep a fall back case of the white vehicle being liable for the accident. The question arises about what additional information the plaintiffs could have obtained concerning the white vehicle if they had delayed things, thus causing themselves to have a longer period of delay for the purposes of s 72 of MACA. The only additional information which has ultimately emerged is in the statement from Mr Khan which I have previously referred to. The State Insurance Regulatory Authority, and ultimately NRMA Insurance, promptly stated that they were of the view that a valid claim had not been lodged against the Nominal Defendant: see 8 March 2017 letter.
In a letter dated 3 March 2017 from Thomas Booler Lawyers to Curwoods it was claimed that there had been "serious prejudice" to the plaintiffs through the late notice of the white vehicle.
At this time there were concerns by the adult plaintiffs in relation to the conduct by Thomas Booler Lawyers of their matters. They gave evidence of numerous attempts made by them to try and get clarification of the status of their claims. They consulted Brydens, it seems, in May 2017. Brydens attempted to act and obtain the files. The plaintiffs seem to have been persuaded by Thomas Booler Lawyers for a short period to remain with Thomas Booler but ultimately they gave instructions to Brydens to act for them. Brydens then attempted, it appears promptly, to obtain the relevant files. In order to do so, Thomas Booler sought to obtain the execution of a tripartite deed, no doubt in accordance with the Law Society's protocol when one firm of solicitors seeks to get files, particularly in a personal injuries case. It seems that despite attempts from Brydens over a lengthy period of time, they did not get the files until at the earliest January 2018, some five months after their attempts began.
Brydens continued in their preparation of the matters. The evidence establishes that the adult plaintiffs had apparently been informed that there were time limits in relation to the commencement of claims. I refer to the letter from Brydens Lawyers dated 18 May 2017 to the plaintiffs informing them of the time limit. The Statements of Claim were filed on 6 July 2018, shortly before the expiry of the period of three years after the accident. However, it seems clear from the evidence that the requirements of s 108 of MACA had not been complied with because there had not been an exemption granted by the Principal Claims Assessor under s 92.
In due course, because of that breach, an application was made by the second defendant to have the proceedings struck out against it, which orders were made by the Court on 7 December 2018. Eventually, leave was granted to file an Amended Statement of Claim which was ultimately filed and these Notices of Motion were filed and set down for hearing. The adult plaintiffs in their affidavits effectively say they have not been involved in any previous claims and that they left the conduct of the matters to their solicitors. At paragraph 34 of his affidavit, Mr Buhora says that he has never been involved in an accident before and he has never made a claim before and he found it overwhelming and left it, as I indicated, to Thomas Booler and, in due course, Brydens. He said in paragraph 38:
"I left it up to my solicitors to do what needed to be done to make my claim and I followed whatever advice they gave me."
Similar evidence is given by Mrs Buhora.
Criticisms have been made on behalf of the second defendant of the fact that there is not before the Court an affidavit or file notes of lawyers from Thomas Booler Lawyers. However, the evidence before me establishes that prior to the expiry of the three year limitation period, the adult plaintiffs were notified of that by Brydens and indeed proceedings were filed within the three year period by Brydens. The fact that they ultimately were struck out does not limit the fact that if the plaintiffs had inquired or if they had been told, they would have been informed that the applications were made within time.
Similarly, Thomas Booler, if asked, would have told them that they had lodged claims giving notice to the Nominal Defendant within s 72 following being informed of the white HiLux. Whether ultimately those claims complied with the requirements of s 72 of MACA in the light of s 76 is another matter.
I now turn to consider the issues which I have identified. In relation to time issues, the accident, as I indicated above occurred on 11 July 2015. Three years after that is 11 July 2018. The Statement of Claim was filed on 6 July 2018 but no exemption certificate had been issued. The Amended Statement of Claim was filed on 5 March 2019 and leave was given to file it some time later. The period of lateness in relation to the s 72 certificate is either until March 2017, if the certificate is regarded as valid, or if it is not, some time longer than that as identified in Mr Wilson's submissions.
In relation to the claim period, it appears that there was a CARS assessment application in late July or August 2018 and the certificate of exemption was issued on 23 August 2018. Accordingly, in relation to the accident, the claim was lodged about three and three‑quarter years in total after the accident. Mr Wilson in his written submissions refers to various dates of delay. I do not think a lot turns on the precise quantum of the delay. The real issue is whether there is a full and satisfactory explanation in relation to the delays.
The plaintiff did not make any submissions to the contrary as to the dates set out in Mr Wilson's written submissions; see for example, paragraph 12 of the s 109 submissions and paragraph 11(a) in relation to the s 72 submissions (being, if there was no proper claim form, that the period goes right up effectively to the commencement of proceedings, that is June 2019).
I therefore go back to the issues which I have previously identified. Sections 34, 34A, 72, 73, 74, 76, 108, 109 and 66 of MACA provide as follows:
"34 Claim against Nominal Defendant where vehicle not identified
(1) An action for the recovery of damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot be established, be brought against the Nominal Defendant.
(1AA) A claim cannot be made against the Nominal Defendant under this section unless due inquiry and search has been made to establish the identity of the motor vehicle concerned.
(1A) If the motor accident resulting in the death of or injury to a person occurred on land that is a road related area within the meaning of s 4 (1) of the Road Transport Act 2013 because it is an area that is open to or used by the public for driving, riding or parking vehicles, there is no right of action against the Nominal Defendant under this section if at the time of the motor accident the person was a trespasser on the land.
(2) The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search.
(3) In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle.
34A. Rejection of claim for failure to make due inquiry and search to establish identity of vehicle
(1) If due inquiry and search has not been made to establish the identity of the motor vehicle concerned, a claim against the Nominal Defendant under s 34 cannot be referred for assessment under pt 4.4 unless:
(a) the Nominal Defendant has lost the right to reject the claim for failure to make that due inquiry and search, or
(b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for failure to make that due inquiry and search, assessed that due inquiry and search has been made, or
(c) the claim is referred only for a certificate of exemption from assessment under pt 4.4.
(2) The Nominal Defendant loses the right to reject a claim for failure to make due inquiry and search to establish the identity of a vehicle if the Nominal Defendant:
(a) does not, within two months after the claim is made, reject the claim for failure to make that due inquiry and search or ask the claimant to make that due inquiry and search, or
(b) does not, within two months after being notified of efforts to establish the identity of the vehicle, refuse to accept that there has been due inquiry and search to establish the identity of the vehicle.
(3) If court proceedings are commenced on a claim against the Nominal Defendant under s 34, the Nominal Defendant may apply to the Court to have the proceedings dismissed on the ground that due inquiry and search to establish the identity of the vehicle has not been made.
(4) An application to have proceedings dismissed on that ground cannot be made more than two months after the Statement of Claim is served on the Nominal Defendant and also cannot be made if the Nominal Defendant has lost the right to reject the claim on that ground.
(5) On an application to have proceedings dismissed on that ground, the Court must dismiss the proceedings unless satisfied that due inquiry and search to establish the identity of the vehicle has been made.
72 Time for and notice of making of claims
(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 subs (2) (only insofar 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.
73 Late making of claims
(1) A claim may be made more than 6 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.
(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 pt 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 pt 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 two 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 two 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 two 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.
74 Form of notice of claim
(1) A notice of a claim under this part must:
(a) be in the form approved by the Authority, and
(b) set out or be accompanied by such particulars and information as may be required by that form.
(2) A notice of claim given to an insurer may, if approved by the Authority, require the claimant to do any one or more of the following:
(a) furnish a medical certificate relating to the claim signed by a medical practitioner,
(b) authorise the insurer to obtain information and documents relevant to the claim from persons specified in the authorisation,
(c) authorise the insurer to provide information and documents so obtained by the insurer to persons specified in the authorisation.
(2A) A copy of an authorisation for the obtaining of information and documents from a person is sufficient authorisation for that purpose and may be relied on as if it were the original authorisation.
(3) The Authority may approve different forms according to the persons to whom the notice is to be given.
76 Rejecting claims for failure to comply with s 74
(1) If s 74 has not been complied with, a claim cannot be referred for assessment under pt 4.4 unless:
(a) the insurer has lost the right to reject the claim for noncompliance with s 74, or
(b) a claims assessor has, on the assessment of a dispute as to whether the claim may be rejected for noncompliance with s 74, assessed that the noncompliance is technical and of no significance, or
(c) the claim is referred only for a certificate of exemption from assessment under pt 4.4.
(2) The insurer loses the right to reject a claim for noncompliance with s 74 if within two months after receiving the claim the insurer does not reject the claim for noncompliance with that section.
(3) If court proceedings are commenced on a claim in respect of which s 74 has not been complied with, the insurer may apply to the Court to have the proceedings dismissed on the ground of noncompliance with s 74.
(4) An application to have proceedings dismissed on the ground of noncompliance with s 74 cannot be made more than two 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 that noncompliance.
(5) On an application to have proceedings dismissed on the ground of noncompliance with s 74, the Court must dismiss the proceedings on that ground unless satisfied that the noncompliance is technical and of no significance.
(6) In this section, a reference to an insurer includes a reference to the person against whom the claim is made.
108 Claims assessment or exemption precondition 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 s 92 (Claims exempt from assessment), or
(b) a claims assessor has issued a certificate in respect of the claim under s 94 (Assessment of claims).
(2) The provisions of this section are in addition to those of s 109. Accordingly, both sections are capable of applying to a claim.
109 Time limitations on commencement of court proceedings
(1) A claimant is not entitled to commence proceedings in respect of a claim more than three 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 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 the Authority for assessment and until two 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 noneconomic loss under s 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.
66 Definitions
(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 noncompliance 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."
The first issue I turn to consider is the time for making the claim. Under s 72 of MACA, a claim must be made within six months after the relevant date for the claim. The relevant date is the date of the motor vehicle accident to which the claim relates. Accordingly, a claim must be made within six months being, in this case, 11 July 2015 plus six months which is 11 January 2016.
Under s 73 of MACA a claim may be made more than six months after the relevant date for the claim, if the claimant provides a full and satisfactory explanation for the delay in making the claim. The Court must dismiss the proceedings unless the full and satisfactory explanation has been provided by the claimant. A definition of "full and satisfactory explanation" in the context of MACA is in s 66(2) of the Act. Under s 76 of MACA, on an application to have proceedings dismissed on the ground of noncompliance with s 74, which relates to the form of the notice of claim, the Court must dismiss the proceedings if there is non-compliance unless it is satisfied that the noncompliance is "technical and of no significance".
In the present case, upon Thomas Booler Lawyers being informed of the fact that the claims were denied by Curwoods on behalf of the first defendant because of the alleged liability of another unidentified vehicle, Thomas Booler was faced with a quandary. It did not have information in relation to the unidentified vehicle. Later, when the statement of Mr Khan was obtained, they found out that Mr Khan said he believed it to be a white HiLux which had previously been next to him at the traffic lights.
However, if further inquiries were made in relation to the unidentified vehicle mentioned by Curwoods, the plaintiffs would have been even later in relation to the period for making the claims. In the circumstances which they faced, Thomas Booler Lawyers made the decision to inform the Nominal Defendant's representatives of all the information which they had at the time. That information was that the three claims, on the plaintiffs' primary case, involved the vehicle at fault being that driven by the first defendant. It also involved providing the s 81 certificate which had been sent by Curwoods referring to an unidentified vehicle. At that time, the plaintiffs and Thomas Booler Lawyers appear on all the evidence to have had no further relevant information to provide. Even if inquiries had been made at the time from Mr Khan, all that would have been pointed out was that he believed it to be the white HiLux at fault.
Emphasis was placed by the second defendant on the fact that Mr Khan had a passenger with him, who may have seen something; however Mr Khan claims the vehicle was hit from behind.
Also Mr and Mrs Buhora say that no one mentioned to them any white vehicle at the time of the accident and when they were informed by Thomas Booler in February or March 2017 of the vehicle, it was the first they had heard of it.
In my view, the following was the position:
1. This was all the information that Thomas Booler had at the time;
2. The plaintiffs themselves could not add to it;
3. Mr Khan could not add to the factual matrix known at the time if he had been asked, as is shown by his statement;
4. Any claim was already outside the six month period under MACA; and
5. Thomas Booler on behalf of the plaintiffs wished to preserve their position.
In my opinion, the approach taken by Thomas Booler in sending the claim document and pointing out all the information they had at the time to the second defendant's solicitors was a reasonable one to the extent that there was any noncompliance with s 74. I am satisfied that it is "technical and of no significance" within s 76(5) of MACA.
I could find no authority at an appellate level in relation to the meaning of that phrase. The parties have handed me a number of authorities including Abbondandolo v GIO of New South Wales (unreported, 16 December 1994, Master Malpass) Hogan v Greenwood [1996] 23 MVR 531 (Master Malpass) Nicholas v Webb [1991] 13 MVR 487 (Master Greenwood) and Budge v Kimmorley [1991] 14 MVR 245, a decision of Studdert J.
In relation to those cases, Studdert J in Budge appears to adopt the comments of Master Greenwood in Nicholas v Webb that it is necessary as far as possible that all of the required information be obtained so that the insurer is in a position to assess a claim. His Honour said that:
"At the very least there must be the provision of information that places the insurer in a position which enables it to discharge with its statutory duty ..."
Master Malpass in Abbondandolo stated:
"A claimant is expected to give the best particulars and information within his means of knowledge, at the time of the giving of notice of the claim. In my view, it is not intended that the Form be treated as comprising an exhaustive exposition of the claim which thereafter restricted its ambit."
I am satisfied from the evidence that the information given by Thomas Booler Lawyers to the Nominal Defendant at the time was all the information that was within the knowledge of the plaintiffs and Thomas Booler Lawyers as at that time.
In relation to Studdert J's reference to the provision of information to enable the insurer to discharge its statutory duty, including to attempt to settle matters, a matter which was referred to by Mr Wilson of counsel for the second defendant in his submissions, the plaintiffs gave over all the information they had at the time. They could give no more at that time. If they had made inquiries of Mr Khan, all they would have been given was the information in his statutory declaration which I find would not have advanced matters.
I find that the noncompliance by the plaintiffs is "technical and of no significance" and accordingly, I reject that aspect of the claim which has been made by the second defendant in support of its Notice of Motion.
The second issue relates to whether there has been a full and satisfactory explanation for the delay. If I am wrong on the first issue in relation to ss 72-74 that, of course, extends the period of the delay from the date of the accident right up effectively to this year. In relation to the s 109 delay issue, although the Statement of Claim was filed within the relevant three year period, it was later struck out and accordingly, the relevant period of delay is one of several months. In looking at the explanation proffered, the Court should consider the entirety of the material provided by the plaintiffs.
Section 66(2) of MACA provides that a reference to a full and satisfactory explanation by a claimant for noncompliance 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 considering this issue, I refer to the statement of principles by me in Choukor v Spiroski [2016] NSWDC 358 at [21]-[28]; by Gibson DCJ in Bird v Connell [2016] NSWDC 376 and by Montgomery DCJ in Margaret Baker v Ross Baker [2017] NSWDC 93. In the case I referred to decided by me of Choukor v Spiroski, I note the general principles I set out there are very similar to the principles put forward in the written submissions of Mr Wilson. In particular, I referred in that case to the Court of Appeal decisions in Karambelas v Zaknic (No 2) [2014] NSWCA 433 at [16]-[17] and Dijakovic v Perez [2015] NSWCA 174 at [15]-[19].
In paragraph 28 of Choukor I set out my summary of the authorities. In order to be a full and satisfactory explanation within s 66(2) of MACA:
1. The explanation must include a full account of the conduct including the actions, knowledge and belief of the complainant from the date of the accident until the date of providing the explanation;
2. The Court must then evaluate all the reasons for the delay and decide whether they are full and satisfactory; and
3. The Court must make an evaluative judgment or assessment as to whether by reference to an objective standard, and given the claimant's particular position, the delay which has occurred was reasonably justifiable.
In the present case, in relation to the infant plaintiff, I refer to Walker v Howard [2009] 78 NSWLR 161 where the plaintiff was under a disability because of his injuries. That was a matter which the Court took into account. Their Honours held that the tutor and the legal advisers were not the persons who officially were the reasonable person to which the Act refers, but their conduct forms usually part of the circumstances to be taken into account when considering whether the delay was justified. Accordingly, one looks at the solicitors here and Mohammed's parents.
Another point is that there has been some reference to delay or dilatoriness being possibly due to the fault of Thomas Booler Lawyers. In Smith v Grant [2006] 67 NSWLR 735 it is noted that it is not uncommon for the explanation provided by a plaintiff for delay to be the incompetence or dilatoriness of the solicitor in conducting the proceedings and/or advising about issues. The Court held that in deciding whether a reasonable person in the position of the claimant and the claimant themselves would have been justified in experiencing the same delay, the fact that a solicitor has not been timely is objectively an identifiable matter which may form part of a full explanation.
In addition, it was stated that an explanation may be a full explanation without exploring the blameworthiness or otherwise of the solicitor. In the present case, it is unnecessary for me to make final findings in relation to the conduct of Thomas Booler Lawyers, but their conduct is a factor to be taken into account in determining the adequacy of the explanation.
I take into account the affidavits of Mr and Mrs Buhora and the evidence given in the detailed affidavits of Ms To.
In my view, the affidavits do amount to a full explanation by each of the adult parents in relation to the delay concerning both the formal filing of a notice within six months of the accident and in relation to the commencement of proceedings within three years of the date of the accident.
The matters I take into account in coming to that conclusion include:
1. That the adult plaintiffs say that they were not previously subject to a claim, that is they had not previously made a claim;
2. The fact that they relied on Thomas Booler Lawyers and also on Brydens;
3. That they made efforts to enquire as to the progress of the matter and after some difficulties were assured that the matter was in hand;
4. That upon ultimately being dissatisfied following being aware of some concerns in relation to a solicitor at Thomas Booler, moved the matter to Brydens and therefore showed concern in relation to their matter;
5. To the extent any blame or delay can be put onto Thomas Booler Lawyers, the plaintiffs were justified in relying on Thomas Booler Lawyers;
6. That the plaintiffs were informed about progress in the matter by both firms;
7. That ultimately, if they had inquired, the proceedings were commenced prior to the three year limitation period;
8. If they had inquired, they would have been told that Thomas Booler had, whether validly or not, sent the original claim forms to the Nominal Defendant with the s 81 denial in an attempt to preserve the plaintiffs' claims against the Nominal Defendant.
Having regard to the entirely of the evidence, in my view each adult plaintiff has provided a full explanation for the two delays in question. Also I find that the explanations provided by the plaintiffs are both such that a reasonable person in the position of the plaintiffs would have been justified in experiencing the same delays in the light of the evidence.
The characteristics and circumstances of the claimant must be taken into account when applying the objective standard: Lyu v Jeon [2012] NSWCA 446 at [22]-[23]. Here, both adult plaintiffs were inexperienced in relation to legal matters and it appears that Mr Buhora had limited English. Obviously in relation to the child, he was relying on his parents.
Taking into account the evidence, I am satisfied that there is a full and satisfactory explanation for the delay within s 109 of the Act. In relation to s 73, I am also satisfied that there has been a full and satisfactory explanation, in the event that there is not proper notice given by what was sent in March 2017. As at March 2017, the Nominal Defendant and its representatives effectively had the best information which the plaintiffs had at the time.
I then turn to the remaining issues to be determined. In relation to the delay issues, I refer to the question of prejudice to the second defendant. No actual prejudice has been put forward. However, clearly, there would be presumptive prejudice in relation to the delays.
While presumptive prejudice occurs in relation to the second defendant, I am satisfied that it is not such as to make a fair trial unlikely and be contrary to the interests of justice. The plaintiffs and the second defendant are effectively in the same position and the second defendant has the statement of Mr Khan and will be in the position, no doubt at the trial, if the other issues are satisfied, to dispute the true cause of the accident and whether the white HiLux even existed.
There is no other factor which in my view would indicate that the discretion should not be exercised in favour of the plaintiffs concerning the issue of full and satisfactory explanation.
The next issue for consideration is that in ss 34 and 34A of MACA, as to whether there has been due inquiry and search by the plaintiffs in relation to the unidentified vehicle. Under s 34(1AA) of MACA, a claim cannot be made against the Nominal Defendant unless due inquiry and search has been made to establish the identity of the motor vehicle concerned. Under s 34(2), the inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search. Under s 34A, on an application to have proceedings dismissed on the ground of lack of due inquiry or search (which is what is claimed here), the Court must dismiss the proceedings unless satisfied that due inquiry and search has occurred to establish the identity of the vehicle.
In the present case, the second defendant says that there has not been due inquiry and search with the Act and the authorities and the plaintiff claims that there has been due inquiry or search.
Counsel for the second defendant has, in his helpful 12 August 2019 written submissions, set out the relevant sections and the relevant authorities and I take that into account. In particular, I refer to paragraph 5 and paragraphs 9 and following. Reference is made to Nominal Defendant v Meeks [2012] NSWCA 66 and Nominal Defendant v Browne [2013] NSWCA 197. However, those cases have slightly different facts to the present. The relevant driver of the unidentified vehicle was at the accident scene and the plaintiff had a short conversation with him in Meeks. As Sackville AJA said at [60], there was no difficulty in identifying the vehicle or the driver because the pedestrian appreciated immediately that he had sustained some injury and that the person was there.
Reference is also made to Cavanagh v Nominal Defendant [1959] 100 CLR 375 when the Full High Court led by Dixon CJ said there are two elements:
1. There must exist an inability to establish the identity; and
2. There must have been due inquiry and search. The latter is to connect the inquiry and search with the person injured.
In Oztan v New South Wales Ministerial Corporation [1995] 23 MVR 259 Kirby P states that due inquiry and search means such inquiry and search as is reasonable in the circumstances. To be reasonable it must be as prompt and thorough as the circumstances will permit.
I also refer to the decision of the Court of Appeal in McLennan v Nominal Defendant [2014] NSWCA 332. Justice Basten considered the facts of that case and would not interfere with the trial judge's finding that prompt action would have been futile. In that case it was held that an alternative approach to due inquiry and search is to say that there need not be due inquiry and search on the basis that such steps would have been futile and were therefore not required: [19]. Justice Emmett, who was the other judge in the majority, considered the principles at paragraphs 112 to 125. I refer in particular to paragraph 113 where his Honour said that in order to satisfy the relevant prerequisite in that legislation the plaintiff must show to the appropriate standard either that there has been due inquiry or search, but the identity of the relevant vehicle has not been established or that although there has not been due inquiry or search, such inquiry or search would not have established the identity of the relevant vehicle.
In the present case, Mr Wilson on behalf of the second defendant, relies on the cross-examination of Ms To in which she conceded that a number of inquiries or requests had not been made in relation to the emergency vehicles, a GIPA request, for CCTV footage, or referring to and interviewing the other person in the car with Mr Khan. Overall, it is submitted that a number of further investigations could have been made.
The plaintiffs submit that all due inquiry and search was conducted in the present case having regard to the fact that the first the plaintiffs became aware of the unidentified vehicle was in February 2017, about 20 months after the accident and that what was due "at that time" must be considered in the light of the gap in time.
The relevant evidence seems to establish the following:
1. At all relevant times up to February 2017, the adult plaintiffs believed that the person responsible for the accident was the first defendant;
2. Both plaintiffs stated in their oral evidence that there was no mention by either the first defendant, Mr Khan or Mr Dilek of any white vehicle. Similarly, they both said that no mention was made at the accident of any white vehicle;
3. Mr Khan in his statement says that he believes that he was hit from behind by the unidentified vehicle. In my view that is relevant because he does not say that he knows that, but that he infers it from the fact that that car was next to him at the previous traffic lights and that he moved into the lane of that vehicle:
4. Reference is made to the other passenger in the Khan car being a person to be interviewed. However, I point out that the car was struck from behind and Mr Khan was not able to give any further indication as to the identity of the vehicle;
5. Reference is made to the emergency vehicles and possible information from government agencies: however the evidence establishes that the emergency vehicles were called by other persons. Accordingly, they were not at the scene of the accident for some other reason at the time;
6. Reference is made to the fact that the police may have got some information from other persons who were witnesses who called the emergency vehicles. However, one would have thought that the very persons involved in the accident would have been the persons who would have seen, or had information in relation to, the other vehicle;
7. Reference is made to CCTV footage. However, this was 20 months after the accident and it is suggested that the accident occurred when people had left the traffic lights and were in the course of proceedings up the roadway;
8. Ms To gave evidence that the advertisement in the newspaper that was placed did not get any relevant response;
9. Even right up to the present, the only information that is greater than what the plaintiffs knew as at February/March 2017 is that contained in the statement of Mr Khan which is annexed to the affidavit of Ms Zen in each matter and which refers to the fact that it is a white HiLux.
Having regard to all the evidence and having carefully considered the very thorough submissions put on behalf of the second defendant by Mr Wilson of counsel, I am satisfied that, having regard to the extensive period that has passed since when the denial occurred in February 2017, there was due inquiry and search within the relevant sections.
In my view, this case is quite different to a number of the cases relied upon by the second defendant where the plaintiff in the relevant matter actually spoke to and dealt with the driver of the unidentified vehicle at the time. The very extensive delay in this case really distinguishes it from those cases.
Mr Wilson of counsel quite candidly and properly conceded that he had not been able to find a case with a similar factual scenario to the present and that was also the result of my searches. In my view, this case is different. When Brydens ultimately got the file, they arranged, possibly with the prompting of the second defendant, after being told that they did not believe there was due inquiry and search, the advertising which has not borne any fruit. At the end of the day, I reject the submission that there has been no due inquiry or search within the legislation and find that that has occurred.
The last issue which I need to deal with is the question in s 109(3)(b). I need to be satisfied that the total damages of all kinds likely to be awarded to the claimants if the claims succeed, are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor vehicle accident.
As I said earlier in these reasons, 25% of the relevant amount of $492,000 is $123,000. As I also said earlier, I need not consider the position in relation to Mohammed, as he is a person of a legal incapacity, being a child.
In relation to Mr Buhora, the evidence establishes that he has been found to have, by an assessment, a greater than 10% permanent impairment. The report of 5 July 2016 of assessor Dr Assem finds a 12% whole person impairment. I refer to the schedule of damages prepared in relation to Mr Buhora which is annexed to the affidavit of Ms To of 12 August 2019. That asserts that appropriate damages for Mr Buhora at trial would be over $1 million. One therefore needs to determine what is meant by the phrase "likely to be awarded to the claimant if the claimant succeeds" in s 109(3)(b) of MACA.
The phrase "likely to be awarded" in this subsection has been interpreted by the Court of Appeal as meaning "a real chance" or "a real prospect" of being awarded damages in excess of the threshold: Sinclair v Darwiche [2010] NSWCA 196 at [36]; Eades v Gunestepe [2012] NSWCA 204 at [10]-[50]. In the Court of Appeal decision in Dijakovic v Perez which I have referred to earlier, it was stated at [120] that the threshold issue is approached by considering "the claimant's medical evidence taken at its highest".
I am satisfied having looked at the medical evidence which is attached to the affidavit of Ms To of 19 June 2019 that it is very likely that the damages awarded to Mr Buhora will exceed $123,000. Having regard to the evidence that he was employed at the relevant time and was earning $1125 a week, that alone would comfortably exceed the amount in issue. Also, an amount for noneconomic loss, even on a modest basis, would be around $100,000.
Taking into account the likely award of past and future superannuation and past and future out of pocket expenses even on a buffer basis, I am comfortably satisfied that the relevant amount likely to be awarded to Mr Buhora would exceed $123,000 taking into account the principles which I have stated.
The position of Mrs Buhora not as clear.
In the affidavit of Ms To of 12 August 2019, it is claimed that at least $231,000 would be awarded to Mrs Buhora at final hearing. Various heads of damages are given. The past economic loss of $15,000 has to be reduced in the light of her evidence, as extracted by Mr Wilson in cross‑examination, that even if she was not absent from work because of her sore neck, she would have taken time off anyway to visit her sick mother in Mauritius. I subtract four weeks of wages to take account of that matter.
The other matter is that Mrs Buhora has effectively, for the vast majority of the time since the accident, worked fulltime and particularly in the most recent years. She is effectively the breadwinner for the family. I was impressed by her and her evidence. The question of a buffer for loss of future earning capacity is raised by the plaintiffs and the amount of $150,000 is nominated. In my view, having regard to the evidence that is a very large amount to claim.
Looking at the particular circumstances of Mrs Buhora and taking into account the principles that I have stated as to approaching the consideration of the medical evidence by looking at the claimant's medical evidence taken at its highest, it is clear that she has some continuing problems with soft tissue injuries and that Dr Guirguis referred to her having a need for domestic assistance with heavier matters.
I therefore look at Mrs Buhora's claim as at least establishing the following:
1. There will be no award for noneconomic loss because there is no evidence that she has met the statutory threshold;
2. For past out of pocket expenses, the evidence establishes that she has various medical expenses, physiotherapy expenses and the taking of pain medication. Although some of them have been paid, it would be prudent to allow at least $5,000 for this head which is what the plaintiffs assert;
3. As for future out of pocket expenses, she will continue to have the need for the items I have referred to and a potential for physiotherapy. Putting the evidence at its highest, whilst the plaintiff asserts $30,000, I currently could not assess it at more than $15,000.
4. For past domestic assistance there is no claim;
5. For future domestic assistance, as I have indicated, the evidence establishes that at present she is given help by a female friend. Mr Buhora does not seem to provide much assistance. Dr Guirguis refers to the need for help with heavier items. Even on taking an extremely conservative approach to this head and allowing one and a half hours for 40 years at $60 per week, and reducing it to allow 15% for vicissitudes, that arrives at the figure of $46,792;
6. Past wage loss - as I indicated, a few thousand dollars should be taken from the figure put forward by the plaintiffs and I allow $11,000;
7. In relation to a buffer for future economic loss, in my view on the current evidence, the amount suggested by the plaintiff is too high. However, putting the plaintiff's evidence at its highest and having regard to the fact that Mrs Buhora has, according to her affidavit evidence, struggled and in the past taken time off, and having regard to her age, although it may be reduced ultimately at the trial, a buffer in the region of $50,000 to $70,000 would not be excessive. In the light of all of those matters, the damages on my calculation exceed the amount of $123,000.
Having regard to the matters that I have referred to, it seems appropriate for the plaintiffs to be given the various leave which they seek.
Accordingly, the orders I make in each proceedings are as follows:
1. The Notice of Motion filed by the second defendant on 5 April 2019 is dismissed.
2. In respect of the Notice of Motion filed by the plaintiff on 29 April 2019, leave is granted nunc pro tunc pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 (NSW) to the plaintiff to file and continue with the proceedings.
In relation to the question of costs on the three motions, Mr Luong, who appears for the first defendant, says that whilst the first defendant attended at the hearing he should not be responsible for any of the costs of any of the other parties. Mr Wilson submits that the conduct of the defendant has been reasonable on all the issues and I accept that.
The matter was a difficult matter and the plaintiffs needed to seek leave. Mr Wilson referred me to a number of authorities where the Court of Appeal has made different statements in relation to the correct approach to costs. The usual order is that costs follow the event. However, the plaintiffs have sought an indulgence and in my view the conduct of all of the parties has been reasonable.
In my opinion the appropriate order exercising my discretion is that the costs of each of the Notices of Motion are costs in the cause between the plaintiff and the second defendant. In my view that will protect the position of the first defendant. Each of the orders which I have indicated will be made in each proceedings.
Each matter is listed before the Judicial Registrar at 9.30am on Wednesday, 28 August 2019.
[3]
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Decision last updated: 23 September 2019