Mortimer v Moon

District Court of NSW|2011-02-16

Judgment 1The plaintiff was injured in a motor accident on 10 April 2006. He made a claim for damages under the Motor Accidents Compensation Act 1999 (the MAC Act), which the insurer denied. 2The plaintiff should have commenced proceedings for damages within 3 years, that is, by 10 April 2009, but failed to do so: s 109 of the MAC Act . He is therefore out of time. 3By Notice received on 22 December 2010 under s 110 of the MAC Act , the plaintiff was required by the insurer to commence proceedings within 3 months, that is, by 22 March 2011. The plaintiff failed to do. He is therefore taken to have withdrawn his claim.

The issues for determination 4By Summons filed on 12 May 2010 and subsequently amended on 5 October 2010 the plaintiff seeks orders of the court for the reinstatement of his claim, and, if reinstated, for leave to commence proceedings out of time. 5The court may reinstate a claim if satisfied that the claimant has a full and satisfactory explanation for the failure to comply with the notice: s 110(5) of the MAC Act . 6The court must not grant leave to a claimant to commence proceedings more than 3 years after the motor accident unless: (a)the claimant provides a full and satisfactory explanation for the delay: s 109(3)(a)of the MAC Act; and (b)the total damages likely to be awarded surpass a prescribed threshold: s 109(3)(b) of the MAC Act . 7The defendant opposes the orders sought. It contends that the plaintiff failed to provide to the court a full and satisfactory explanation for the delay in commencing proceedings. Alternatively, the defendant says that the plaintiff does not have a full and satisfactory explanation for the failure to comply with the s 110 Notice. (The defendant does not rely on s 109(3)(b) of the MAC Act .) 8A reference to a "full and satisfactory explanation" is dealt with in s 66(2) of the MAC Act , which provides: "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 providing of 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 some delay." 9I was referred in argument to several decisions of the Court of Appeal in which the concept of a full and satisfactory explanation was considered, in particular the recent decisions in Walker v Howard [2009] NSWCA 408 and Ellis v Reko Pty Limited [2010] NSWCA 319. 10The plaintiff relies for his explanation upon the following affidavits and the annexures to them, including a statement made by the plaintiff on 4 December 2007. None of the deponents was required for cross-examination: (a) Affidavit of Cran Mortimer (the plaintiff) of 9 August 2010. (b) Affidavit of Cran Mortimer (the plaintiff) of 21 October 2010. (c) Affidavit of Warwick Cottee (the plaintiff's solicitor) of 5 May 2010. (d) Affidavit of Cran Mortimer (the plaintiff's solicitor) of 10 August 2010. (e) Affidavit of Tarek Elarif (the solicitor's agent) of 3 September 2010.

Chronology 11It is convenient to consider the history of events by reference to various periods. 12The first period commences with the plaintiff's motor accident on 10 April 2006 and concludes with the date on which he first consulted his solicitor in early January 2007 in connection with the accident, a period of some 9 months. During this time the plaintiff was off work, undergoing medical treatment. In the accident he suffered a number of serious injuries including a fractured right leg, a fractured right elbow, and severe facial injuries including a fractured jaw for which he required extensive treatment. Whilst he was in hospital, his wife left him and he went to live with his mother until November of that year while she provided him with domestic care and assistance. 13There is nothing in the evidence that expressly explains why the plaintiff did not seek legal advice sooner. There is no explanation about the state of his knowledge, or how it was he came to consult a solicitor. 14The second period for consideration follows upon the plaintiff consulting his solicitor in January 2007 and concludes on 15 May 2008 with the receipt by the solicitor for the plaintiff of a Notice served by the insurer under s 81 of the MAC Act in which it denied liability for the plaintiff's claim, a period of some 16 months. During this time a Claim Form was lodged and there was correspondence between the insurers and the plaintiff's solicitor about various matters, including the medical and financial aspects of the claim. The plaintiff attempted unsuccessfully to return to his pre-injury work. On 4 December 2007 the plaintiff gave a statement to an investigator appointed by the insurer. 15There is no evidence as to whether the solicitor told the plaintiff about the notice, or advised him as to its significance, or obtained any instructions in relation to it. 16The third period for consideration follows the s 81 Notice in May 2008 and concludes a year later in May 2009 when the insurer applied to the Motor Accidents Authority (MAA) for exemption in respect of the plaintiff's claim from the Claims Assessment Resolution Service (CARS). The application was served on the solicitor by letter dated 5 May 2009. During this period there was sporadic activity in connection with the claim, including the attendance by the plaintiff at a medical examination arranged by the insurer. The plaintiff himself provides little detail about what he was doing or thinking during this period, apart from some physiotherapy and attempts at rehabilitation. 17Also during this period, notwithstanding the denial of liability by the insurer, the 3 year limitation period expired. But there is no evidence about that. It is not disclosed whether the solicitor was aware of the time limit, and if so whether he diarised it, advised the plaintiff about it, or took any instructions about not commencing proceedings in time. Nothing. As for the plaintiff, his affidavits are similarly silent. 18The fourth period for consideration follows the application for exemption in May 2009 and concludes in December 2009 with the service of the s 110 Notice by which the insurer required the plaintiff to commence proceeding within 3 months, a period of 7 months. During this period the insurer arranged a series of medical examinations. The solicitor lodged a reply to the exemption application on 2 June 2009 opposing the exemption. The MAA issued an Exemption Certificate dated 2 June 2009, indicating that exemption was mandatory. The solicitor complains that he was not aware of the Exemption Certificate till December, but did nothing in the interim to follow it up. In any event, he found out about it in December 2009. The evidence about what the plaintiff was doing in this period is sparse. The solicitor said in his affidavit that despite the application for exemption, he believed the insurer was continuing to assess the claim "under its general duty to resolve a claim." The basis for this belief, beyond the arranging of the medical examinations, is not revealed. The plaintiff said in his affidavit that he believed the insurer was obtaining medical information in order to negotiate a settlement with him. This is unexplained. 19The fifth and final period for consideration follows the service of the s 110 Notice in December 2009 and concludes with the filing of the Summons commencing these proceedings in May 2010, a period of some 4 months. 20After service of the s 110 Notice in December 2009 the solicitor did nothing until late January 2010, then there was a flurry of activity. His office chased up the Exemption Certificate, and a copy was received on 1 February. On 3 February a Statement of Claim was forwarded to law agents, R Hazlett & Co, for filing. According to the Memorandum, the solicitor was overseas until 8 February 2010. The Statement of Claim was not accompanied by the statement required under Schedule 10 of the UCPR in respect of motor accident matters. On 4 February Mr Tarek Elarif from R Hazlett & Co attempted to file the Statement of Claim, but it was rejected by the Registry due to the absence of the Schedule 10 form. Mr Elarif rang the solicitor's office and was told the required form would be sent the next day. But it wasn't, and on 12 February R Hazlett & Co returned the Statement of Claim. There is no evidence about what happened in the solicitor's office and why no further attempt was made at that time to commence proceedings. 21The proposed Statement of Claim was also faxed to the insurer's solicitors, Curwoods Lawyers. According to his affidavit, the solicitor believed this was "reasonable compliance with Curwood's request". Clearly it wasn't. Curwoods wrote back by letter dated 5 February pointing out that the limitation period had expired and advising that if the plaintiff wished to commence proceedings he would need to do so with the leave of the court, requiring the plaintiff to provide a full and satisfactory explanation for the delay. 22The solicitor responded on 10 February 2010 saying: "Upon further consideration of the matter, it is our preference to conduct further enquiries in a timely manner in relation to our client's claim prior to commencing proceedings." 23The affidavits do not explain what further enquiries were thought to be necessary, or why they had not previously been carried out, in a timely way. 24The solicitor advised the plaintiff he would need to make an application to obtain leave of the court to file the Statement of Claim, and he would require funds for filing fees and disbursements to cover the application proceedings. But the plaintiff did not have the money, and despite attempts to raise it, was only able to borrow it from his brother towards the end of April. The cheque providing the money was not cleared until about 5 May and the Summons was only filed on 12 May 2010, some 2 months after expiry of the 3 months.

The submissions made on behalf of the defendant 25Counsel for the defendant submitted that a review of the totality of the evidence revealed that no explanation was provided. This is not a case of inadequate explanation because there was really no explanation at all. The affidavits amounted to nothing more than a chronology of events and work undertaken in relation to the plaintiff's claim, but there is nothing in them explaining the delay, and in particular the failure to commence proceedings, particularly after the denial of liability on 13 May 2008. 26The solicitor must have (or should have) known he needed to commence proceedings, in particular after the denial of liability. The court cannot infer that the solicitor was somehow waiting to see if the dispute could be resolved without resort to litigation. If that was the position, it should have been stated and the rationale explained. 27In relation to the s 110 Notice served in December 2009, it was never explained why the Schedule 10 form was not filed. Nor was it adequately explained why proceedings were not commenced within 3 months. The plaintiff gave evidence as to having been asked for money, but the solicitor's affidavits are silent as to why proceedings were not commenced within 3 months, apart from the rejection of the Statement of Claim due to the absence of the Schedule 10 form. 28If commencement of proceedings was conditional upon receipt of money, that needed to be explained, and why it was that at that late point the solicitor decided he needed money, and not before.

The submissions made on behalf of the plaintiff 29Counsel for the plaintiff conceded there was a long history of inaction, but that this occurred on both sides. The explanation for the first period, before the plaintiff consulted the solicitor, is explained by the plaintiff's circumstances, his medical and personal situation. The period up until lodging the claim form was not unreasonable. Then, after service of the s 81 Notice there was activity on both sides and the solicitor thought they were still negotiating. That was a reasonable inference having regard to the insurer arranging a number of medical examinations. 30It was submitted that i n one sense the s 109 limitation period is irrelevant because the insurer did not make the application for exemption until after the limitation period expired. And it was only after service of the s 110 Notice that the insurer's solicitors sought to rely on the s 109 limitation period, and did so before expiry of the 3 month period. 31Accordingly, the only period requiring an explanation was the period after service of the s 110 Notice in December 2009. The real delay only occurred after February 2010, and that was only a matter of weeks, and was clearly due to the money, and the plaintiff's inability to pay.

Findings and conclusions 32The material presented provides an account of some of the actions undertaken by the claimant and his solicitor. The solicitor never once said why he didn't commence proceedings, apart from the one piece of evidence that despite the application for exemption he believed the insurer was continuing to assess the claim "under its general duty to resolve a claim." The affidavits provide no account at all as to the knowledge and belief of the plaintiff at relevant times, except for the period following the exemption application. 33The plaintiff's assertion to the effect that he believed the insurer was obtaining medical information in order to negotiate a settlement with him is not explained. How, when or why he formed that belief, and on what information, advice or considerations it was based is not explained. 34The plaintiff never once mentions the limitation period, and the court is uninformed as to whether to this day he even knows there was one, and when it expired. 35There was no indication in the evidence suggestive of any willingness on the part of the insurer to settle. The solicitor's belief, and the plaintiff's, that there might yet be some attempt to settle was, assuming that to be the belief, was unreasonably held. Quite simply, the solicitor should have either commenced proceedings after the denial of liability or explained to this court why not and what advice he gave the plaintiff, and what instructions he received in that regard. Only then could the explanation be said to be full, and an evaluation made as to whether it was satisfactory. 36In terms of an explanation, the material put before me was hopelessly inadequate. The word "full" has been held to be a word that must be given its semantic significance, and it means that the explanation must be set out and it is not sufficient that the court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious: Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]. The explanation must address acts and omissions relevant to the delay, so as to enable the court to evaluate the reasons for the delay. 37The full account required by s 66(2) of the MAC Act is not limited to the claimant personally, without regard to those who acted on his behalf, in so far as that conduct was relevant to the delay: Walker v Howard [2009] NSWCA 408 at [72] and [106]. Nor is it limited to actions and it must include the knowledge and belief of the claimant: at [77]. 38In the present case, it is impossible to evaluate the reasons for the failure to commence proceedings, due to the absence of any explanation. The account given was not full, and whilst it contained some reference to actions, it said absolutely nothing about the claimant's knowledge and belief. 39Whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay cannot be evaluated because it was never explained whether he even knew there was a delay. Even if it could be inferred that he did know there was a time limit, there is no explanation of what motivated him to ignore it and let it pass unremarked. 40To the extent that the plaintiff relies upon a belief that the insurer was still attempting to negotiate a settlement, that explanation only relates to the period following the expiry of the limitation period and is irrelevant to the critical period of delay, namely the 12 months following service by the insurer of the s 81 Notice in which it denied liability for the plaintiff's claim. I would not, in any event, find that belief to be a satisfactory explanation, because, as discussed above, it was not based on any rational explanation or facts justifying its formation. 41I find, therefore, that the plaintiff did not provide the court with a full and satisfactory explanation for the delay. Accordingly, the application for leave to commence proceedings out of time must fail. 42The motion will therefore be dismissed. 43For the sake of completeness, however, I will also record the decision that I would have made in the event that I had given leave under s 109 of the MAC Act for the plaintiff to commence proceedings out of time. 44The explanation for the failure to commence proceedings within 3 months as required by the s 110 Notice is not merely exiguous, it is not a full explanation. As I have identified, there were a number of unsatisfactory features about the purported explanation that made it a less than full account. 45There was no explanation as to why the Schedule 10 form was not prepared nor was the court told what further investigations the solicitor thought were necessary before commencing proceedings. 46I am, therefore, not satisfied that the plaintiff has a full explanation for the failure to comply with the s 100 Notice. 47Even if the absence of funds was to be considered a full explanation for the delay, I would not accept that as a satisfactory explanation without more as discussed above. 48I find, therefore, that the plaintiff did not have a full and satisfactory explanation for the failure to comply with the s 110 Notice and I would, accordingly, decline to reinstate his claim.

Disposition 49For these reasons the plaintiff's applications fail. 50The Summons is dismissed. 51Costs follow the event and are payable on the ordinary basis, unless some other order is appropriate. There is nothing before me, at this.point, to indicate that some other order is appropriate. 52I order the plaintiff to pay the defendant's costs of the Summons. Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2011

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (2)