Moon v Moon

THE DECISION APPEALED AGAINST 3 His Honour correctly summarised some of the provisions of the Motor Accidents Act as follows: "1. A claimant is not entitled to commence court proceedings against another person in respect of a claim until 6 months have elapsed since notice of the claim was given to the other person and …(if required by s 43(4))to the other person's insurer). 2. If notice is given to the other person's insurer (being a third-party insurer) then, despite subsection (1), the claimant is entitled to commence court proceedings if either of the following occurs: (a) the insurer denies all liability in respect of the claim; or (b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted. 3. If a claimant commences proceedings in respect of a claim more than 12 months after the date on which the claim must be made in accordance with s 43, the claimant must provide a full and satisfactory explanation to the court for the delay. 4. A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with s 43 except with the leave of the court in which the proceedings are to be taken. 5. The Limitation Act 1969 (NSW)("NSW Limitation Act") does not apply to or in respect of proceedings in relation to a claim." 4 It may be observed that, in contrast to common provisions in statutes of limitation, for instance s 57 of the ACT Limitation Act, the criteria for granting leave are not spelled out in the Motor Accidents Act. 5 His Honour found that the plaintiff was born on 22 October 1970 and that she was therefore not of full legal capacity at the time of injury. Whilst time did not run for the purposes of s 30 of the ACT Limitation Act of the Territory until she ceased to be under legal disability on 22 October 1988, there was no similar postponement of the time bar under the Motor Accidents Act or under any other New South Wales law: see O'Brien v O'Brien (1995) 35 NSWLR 664. In that case it was said that the age and the matter of the claimant's disability was relevant in deciding whether or not to postpone the bar. In the present case it was common ground that the time bar imposed on the plaintiff expired on 30 June 1992. His Honour sought to apply to these facts guidelines for the exercise of the discretion under s 52 of the Motor Accidents Act as they emerged in certain decisions of the New South Wales Court of Appeal and the decision of a Full Court of this Court in Bartlett v Bartlett (2000) 170 ALR 25. His Honour saw some difficulty in identifying these guidelines because of a perceived conflict between the New South Wales decisions and the decision in Bartlett. His Honour acknowledged that, as a judge sitting in the Supreme Court of the Australian Capital Territory, he was bound by the decision in Bartlett but was concerned that "the express legislative provision" in s 57 of the ACT Limitation Act that the discretion be exercised "as far as practicable … in the manner in which it is exercised in comparable cases by courts of that place" required him to follow the decision of the Court of Appeal in Holt v Wynter [2000] NSWCA 143 which his Honour saw as conflicting with that in Bartlett. 6 This issue may be dealt with immediately. If there is any conflict between a decision of the Full Court of this Court and any other court then a single judge sitting at first instance in the Supreme Court of the Australian Capital Territory is bound to follow the decision of this Court (unless of course it has been overruled by the High Court of Australia). However, for reasons which will appear later, the conflict which concerned his Honour is more apparent than real. Indeed his Honour seems to have decided ultimately that there was no conflict that had any impact on the case and stated that, whichever approach be followed, "the onus is on the plaintiff to satisfy the court that the defendant will suffer no significant prejudice in relation to the fair trial of this matter." The principle so stated is correct. However, his Honour went on to add that "It may be inferred that the longer the delay before an insurer is put on notice of the claim, the greater the evidentiary onus on the plaintiff to prove lack of significant prejudice to the defendant" and that, in accordance with the New South Wales decisions, there was to be "no assumption of particular prejudice unless the defendant has established the facts relevant to it".

7 The defendant challenges the latter proposition and submits that the application of it led to error on the part of the Supreme Court in granting the extension of time. 8 The defendant relied in the present application to this Court on a draft notice of appeal. It contained 20 separate grounds, some of which were not pressed and others of which were grouped together for the purposes of the application for leave to appeal. 9 The basic argument on behalf of the defendant in the application is that from 1988 to 1995 his insurer, the Government Insurance Office of New South Wales (the GIO), was denied the opportunity of making inquiries as to contemporary complaints by the plaintiff of pain in the neck and lower back. The GIO may be regarded as the substantive defendant in the matter. The response on behalf of the plaintiff relies on the considerable confusion in New South Wales at relevant times about the right to sue for damages for personal injury arising from the use of motor vehicles. The Transcover scheme had commenced on 1 July 1987, less than five months before the plaintiff's injury. She complied with the requirements of the scheme when she gave notice of her claim on 24 October 1988. The Transcover scheme was abolished and the right to sue for damages was restored on 1 July 1989, although the amount of damages recoverable was restricted. The plaintiff however was ignorant of the restoration until she learned something about it on 30 July 1994 in an advertisement by the solicitors now acting for her. That was some two years after the expiry of the limitation period imposed by the Motor Accidents Act. Thereafter she acted reasonably and promptly to take legal advice and to notify the GIO of her claim on 15 February 1995. Any delay after that, it was submitted on her behalf, does not prejudice the defendant, although it has to be taken into account. 10 The essence of the case for the defendant in the application, as distilled in the written submission, is that, because the plaintiff did not complain of neck or back injuries in 1987 (nor, it might be added, in her notice of claim of 24 October 1988), and because the defendant was not on notice about such complaint until early 1995, the defendant acting reasonably has suffered prejudice in that he did not have the opportunity of investigating contemporaneously such complaints as there were by the plaintiff in the period between 1988 and 1995. This lack of opportunity, it is submitted, is "real prejudice" which his Honour failed to take into account. 11 Clearly the lack of opportunity to make investigations as to the plaintiff's condition as it was during the period 1988 to 1995 amounts to prejudice of a real kind. In accordance with principle, the plaintiff had to show that, despite that prejudice, the defendant was not denied the prospect of a fair trial of the issue of the nature and extent of the plaintiff's disability (if any), and associated symptoms, due to the 1987 injury. However, the submission that his Honour failed to recognise that prejudice of that nature had to be taken into account, simply does not stand up in the light of his Honour's reasons for judgment. The more substantial issue is whether his Honour wrongly in law cast the onus on the defendant to show that the prejudice was so great that he was denied a fair trial. 12 Whilst there are certain passages in the reasons for judgment (for instance as quoted in [6] above) which, taken in isolation, might give rise to an impression that his Honour regarded the onus as resting on the defendant, an overall reading of the reasons, placing those passages in context, leads to a contrary conclusion. It is common in litigation for the party bearing the onus of proof to call evidence in order to discharge the onus on a particular issue and for the opposing party to call evidence and rely on arguments in contradiction of that issue. As part of the decision-making exercise, the Court must take all the evidence and arguments into consideration. Sometimes, in giving reasons for decision, a Court may appear to concentrate on discussing the evidence and arguments of the party entitled to the protection of the onus of proof in order to explain a finding in favour of the party on whom the onus of proof rests. To appear to so concentrate, or even however, to do so, does not of itself betray a misunderstanding of where the onus lies. His Honour was under no such misunderstanding. 13 The further submission was put that it was simply not open to his Honour to find that "a fair trial would be had" having regard to the eight year delay from the time between the injury and the notification to the GIO in early 1995 of the serious nature of the plaintiff's injuries. However, this was not the precise finding by his Honour, nor was it necessary for such a finding to be made. What the plaintiff had to show was that the defendant was not denied the opportunity of a fair trial by reason of the prejudice arising from the delay. It was correctly put in the submission that different emphases have been put by courts (and, one might add, different judges of individual courts). Particular reliance was placed upon the remarks of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, said to be "echoed" in Bartlett by Gallop J at [8] and Wilcox J at [57], that: "When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice". 14 It is difficult to see why the defendant now relies on the particular passage unless it is positively put that there is some particular factor in the case (apart from the denial of opportunity to investigate the plaintiff's complaints) which goes beyond presumptive prejudice. The only factor of that nature raised appears to be that the notice given in 1988, together with the plaintiff's non-response to the Transcover invitation to pursue a claim for permanent impairment at the end of 12 months or when the condition becomes "stable and permanent", whichever first occurred, may have given Transcover or the GIO the impression that the plaintiff had no further claim to pursue. On the other hand, in New South Wales the right of persons like the plaintiff to claim statutory compensation or, in the alternative, damages at common law was in a state of flux. The Transcover scheme was abolished before the expiration of 12 months from the date of the plaintiff's notice of claim. In any event, it is incorrect to say that his Honour did not consider the importance or the nature of the notice. 15 It was further submitted that his Honour did not consider the way in which a reasonable insurer might conduct itself given the circumstances. There may be some merit in the argument that this is a matter relevant to prejudice. In Brisbane South Regional Health Authority it was acknowledged as such by McHugh J at 552-553 in the following passage (omitting footnotes): "…people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out: 'The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served.'" 16 However, it is difficult for the defendant to argue now that his Honour should have relied upon that factor in the absence of evidence. As already said, the relevant law of New South Wales was in a state of change. The restoration of common law rights of a limited nature was unknown to the plaintiff until many years later. In contrast, it was presumably known to the GIO at the time of restoration, although we were not informed of the relationship between Transcover and the GIO. There was no evidence of how the GIO organised its affairs in the light of that restoration, particularly in relation to persons like the plaintiff who might have been misled into thinking that their position was restricted to what was implied in the Transcover letter (apparently a pro forma letter) of 15 November 1998, namely that they had to pursue a claim for permanent impairment "at the expiration of 12 months" or when the condition was "stable and permanent" whichever first occurred. His Honour therefore was not in error in failing to have express regard to the position of the GIO as insurer of the defendant. 17 There was clearly one error of fact in his Honour's judgment as recorded. In [54], his Honour stated that the plaintiff's 1987 claim form referred to the injury requiring 55 stitches in the right knee. In fact, the claim form referred to five stitches only, and correctly so. This may have simply been a typographical error in the judgment. It is unfortunate that the error was not made the subject of an application under the slip rule of the Supreme Court, in which case it would have become clear whether or not it was merely a typographical error. But if it is indeed an error of misunderstanding of the evidence on the part of his Honour, it is not shown that it played a sufficiently important part in his Honour's reasoning to justify the granting of leave to appeal. In particular, there was no evidence that the reference to the number of stitches led Transcover or the GIO to believe that the plaintiff's injury was potentially or actually a serious one, nor that the reference was even likely to have done so. 18 For these reasons the decision of the Supreme Court to allow the plaintiff an extension of time in which to sue is not sufficiently affected by error of law or fact to justify the granting of leave to appeal and the application should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Miles and Stone JJ. Associate: Dated: 7 December 2001

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY A 14 OF 2001

GYLES J: 19 This is an application for leave to appeal and, if granted, an appeal from a discretionary judgment which, as the appellant accepts, is governed by the principles laid down in House v R (1936) 55 CLR 499. It is convenient to refer to the applicant as "the defendant" and the respondent as "the plaintiff". I have read the judgment of Miles and Stone JJ in draft and, although on any view the case is close to the borderline, if it were not for one aspect of the matter I would join in dismissing the application. That aspect is the failure by the primary judge to consider the existence of particular real, as opposed to presumptive, prejudice to the defendant in the judgment of the Supreme Court of the Australian Capital Territory ("the Supreme Court") from which the appeal is brought. 20 His Honour accepted that the onus was on the plaintiff to satisfy the Court that the defendant will suffer no significant prejudice in relation to the fair trial of the matter. It is submitted for the defendant that there was clear evidence of real, as opposed to presumptive, prejudice to the defendant by reason of the fact that the defendant was not put on notice of the nature of injuries now complained of until August 1995, although the accident was in November 1987. 21 The problem goes beyond the mere fact of delay. As appears from pars [50] to [60] of the judgment, the notice given to and communications with Transcover (which may be accepted, for present purposes, as the predecessor of the present insurer of the defendant) in 1987 and 1988 indicated that the injuries sustained were minor, of no continuing significance and were settled under the prevailing legislation. It was only in 1995 that notice was given that there was a claim for serious continuing neck and back injuries. The evidence of the plaintiff on the application included the following: "At the time of the accident I was undertaking secretarial studies. The accident set back my studies however I went on to pass my exams and become a qualified secretary. Unfortunately, due to the back and neck injuries I sustained in the accident I am unable to sit for any prolonged period of time as a result I am unable to undertake full-time secretarial employment. Had I not sustained the back and neck injuries in the accident I would most certainly have commenced full-time employment as a secretary shortly after the accident when I graduated from my secretarial studies. Since the accident I have attempted employment at a machine and embroidery shop where once again I was forced to sit for prolonged periods of time undertaking sewing. The employer got angry at me stopping from time to time during the course of the day to massage my shoulders and as a result I was forced to leave that employment because I was not performing up the standard expected of the employer. In about 1996 I was employed at Personally Yours in Fyshwick, ACT where I worked for a period of approximately nine (9) months on a full-time basis earning an excess of $300.00 per week. Again, I was forced to give up that employment due to the pain and discomfort of prolonged sitting due to my back and neck pain." In other words, the plaintiff alleges that the disabling neck and back conditions first claimed in 1995 were present for many years prior to 1995. However, the plaintiff, in her evidence, did not give an account of medical advice and attention consistent with her present complaints in the years between the accident and 1995. Further, the plaintiff gave no explanation in her evidence for not pursuing the invitation to her from Transcover in 1988 to make a claim for compensation for permanent impairment. 22 Counsel for the defendant submits that it will be called upon to face a case in which damages may be substantial, if the plaintiff succeeds on liability and is accepted as to her disabilities, in circumstances where there was no occasion for the defendant (or, in practice, the defendant's insurer) to investigate the serious injuries and incapacity now alleged by the plaintiff until nearly eight years after the accident. Counsel for the plaintiff accepted in argument that this was so. The injuries now alleged are not peripheral to or insignificant in the case: they are central to the claim for damages for past and continuing disability. 23 In my opinion, this is real, rather than presumptive, prejudice and was a consideration which required careful weighing on the scales. Counsel for the defendant is correct in submitting that this aspect of the matter is not considered in the judgment. Counsel submits (again correctly) that par [88] of the judgment illustrates the problem. It is not surprising that the defendant has no evidence of any contributing medical condition. The defendant had no occasion to have its own medical investigation done proximate to the accident, which would have provided evidence of the then condition of the plaintiff, and no occasion to investigate and monitor the continuing activities and capacities of the plaintiff which might have revealed a contributing (or alternative) cause of any incapacity which exists. It is not to the point that some cases may be commenced late, but within the limitation period, in circumstances where the defendant has had no opportunity to investigate in the meantime. In an application of this kind the plaintiff is seeking an indulgence and bears the onus of dealing with any prejudice to the defendant arising out of the actual facts of the case in hand. 24 In my opinion, the exercise of the discretion by the Supreme Court miscarried, as a relevant consideration was not taken into account. It is not appropriate for this Court to exercise the discretion. Leave to appeal should be granted and the appeal allowed. The order of the Supreme Court should be set aside and the matter remitted to the Supreme Court for further consideration according to law. The plaintiff should pay the costs of the defendant of this application and appeal. The costs of the proceeding in the Supreme Court to date should be dealt with by that Court at the conclusion of the proceeding. A certificate should be given pursuant to s 6 or s 7 of the Federal Proceedings (Costs) Act 1981 (Cth). I certify that paragraphs 19 to 24 are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Applicant: Dibbs Barker Gosling