Parker v MacLoughlin

The Law

1. Section 72 of the Act provides as follows: "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 subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if-- (a) that person is dead, or (b) that person cannot be given notice."
2. Section 73 of the Act provides as follows: "73 Late making of claims (1) A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a 'late claim') if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer. … (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. … (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."
3. Section 109 of the Act provides as follows: "109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 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 death of a person--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 Commission for assessment and until 2 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 non-economic loss under section 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."
4. The phrase "a full and satisfactory explanation" occurs in both s 73 and s 109. The phrase is defined in s 66(2) of the Act as follows: "In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay."
5. Senior Counsel for the defendant indicated that: 1. There was no issue concerning s 109(3)(b) and so, for the purposes of the Motion, the damages likely to be awarded to the claimant if he succeeded were more than the statutory amount. 2. The defendant would not argue that it had suffered any prejudice by reason of the delay in serving the claim, or the delay in commencing proceedings. 3. The defendant accepted that the explanation was "full" but disputed that it was "satisfactory". 4. The matter was in the CARS system between 23 December 2020 and 3 May 2022, which satisfactorily explained that part of the delay in commencing proceedings. Thus the focus in relation to delay was the time between the accident on 2 July 2009 and 23 December 2020, a period of over eleven years.
6. In Walker v Howard [2009] NSWCA 408; (2009) 78 NSWLR 161 the Court of Appeal sat five judges to consider, inter alia, the meaning of the definition of "a full and satisfactory explanation" in s 66(2) of the Act. The case concerned a claimant who suffered serious brain damage in an accident and who was unable to look after his affairs. It fell to his family members to pursue his rights. The claimant failed to commence legal proceedings against the defendant within three years of the accident and thus needed leave under s 109 of the Act to commence proceedings.
7. The Court of Appeal said (references below in square brackets are to paragraphs in the decision): 1. The explanation of "the conduct" required by the first sentence of s 66(2) is an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimant's behalf, if their conduct is relevant to the explanation for the delay: [53], [106], [133]. 2. The explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, but this does not broaden the meaning of "claimant" in the first sentence of s 66(2) beyond its defined meaning, to include any person acting or purporting to act on his or her behalf: [55]. 3. The meaning of "full" in s 66(2) is to be understood in the context of the purpose of the provision which is to enable the court to evaluate the reasons for the delay; therefore all relevant information to that end is required: [57]. 4. The test contained in the second sentence of s 66(2) is an objective test of whether a reasonable person in the claimant's position would have been justified in experiencing the delay: [64], [108], [134]. 5. Others without legal authority and responsibility are not part of the objectified reasonable person. Nevertheless they and their actions may form part of "the position" or circumstances of the claimant to be taken into account when considering if there was justification for experiencing the delay: [100], [150].
8. Mrs Parker is a solicitor. She does not practice in personal injury law. No doubt with the decision in Walker v Howard in mind, Senior Counsel for the defendant cross-examined her. Mrs Parker accepted that she assisted her husband with the claim and in obtaining and considering legal advice received from time to time.
9. In Karambelas v Zaknic (No. 2) [2014] NSWCA 433 the Court of Appeal said the following relation to whether an explanation is "full and satisfactory" within the meaning of the Act: "16 An explanation is 'full and satisfactory' within s 66(2) if it satisfies two requirements. First, it must include 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'. In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant 'would have been justified in experiencing the same delay'. The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the 'full' account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing. 17 The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant 'has a full and satisfactory explanation'. The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided 'in the first instance'. However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made."

Key Dates

1. The Chronology (MFI 1) relied upon by the plaintiff sets out in detail the sequence of events and gives reference to the evidence which establishes each listed event. The accuracy of the Chronology was not disputed. I find that every event listed in the Chronology has been established as a fact.
2. The following are the key dates: 1. 2 July 2009: Date of accident. 2. 28 July 2009: CTP insurer received the Accident Notification Form. 3. 2 August 2009: Mrs Parker completed a Work Injury Claim Form. 4. 5 August 2009: Senior Constable Bennie attended the plaintiff's home. 5. 5 August 2009: COPS Report prepared by Senior Constable Bennie. 6. 11 August 2009: CTP insurer wrote denying liability and stating "You are the driver at fault in the accident". 7. 11 June 2011: Mr and Mrs Parker attended Carroll & O'Dea Solicitors to obtain advice about the workers compensation claim. A potential motor accident claim was also discussed. 8. 21 June 2011: Carroll & O'Dea advised the plaintiff that proceedings under the Act must be commenced within three years of the date of the accident and no later than 2 July 2012. Advice was also given that "certain procedural matters must be attended to prior to the commencement of proceedings". 9. 5 September 2011: Carroll & O'Dea sent the police report dated 21 June 2011 to Mrs Parker. The letter also enclosed a partly completed Personal Injury Claim Form. 10. 13 October 2011: Consideration of a claim against the Nominal Defendant, because of the notion that an unidentified motorcycle may have been at fault. 11. 11 November 2011: Investigation Report by Carrington Investigations commissioned by Carroll & O'Dea. 12. 24 November 2011: Advice of Senior Counsel. 13. 29 November 2011: Carroll & O'Dea advised that they did not think that the plaintiff had reasonable prospects of proving fault in another driver and that they could not act any more unless the plaintiff paid for a liability expert at a cost of between $3,000 and $4,000. 14. 8 December 2011: Mrs Parker sent an email to Carroll & O'Dea stating: "Therefore I accept your recommendation not to proceed with a claim". 15. August 2019: Mrs Parker sought advice from G & S Law Group in relation to any ongoing workers compensation rights (Carroll & O'Dea had continued to act for Mr Parker in relation to his workers compensation rights between 2011 and 2018). 16. 20 September 2019: Mr Parker conferred with a barrister who was familiar with the intersection and realised that he was mistaken in his belief that he did not have a viable claim under the Act. 17. 22 December 2019: Motor Accident Personal Injury Claim Form completed and lodged. 18. 21 January 2020: CTP insurer requested a full and satisfactory explanation in accordance with s 73 of the Act. 19. 26 May 2020: CTP insurer declined the claim due to failure to provide a full and satisfactory explanation. CTP insurer also advised that it admitted fault on the part of the Honda driver (Ms MacLoughlin) but assessed contributory negligence at 70%. 20. 3 May 2022: CARS Certificate of Exemption issued. 21. 30 June 2022: Proceedings commenced in the Supreme Court and subsequently transferred to the District Court.

Plaintiff's Explanation

1. The affidavit of Mr Parker (PX 1) was acknowledged to be a full explanation by Senior Counsel for the defendant. In short, Mr Parker stated as follows: 1. Mr Parker suffered traumatic amnesia in the motor vehicle accident and has no recollection of the day. 2. The accident was investigated by Senior Constable Bennie who concluded in a COPS Report that when Mr Parker rode his motorcycle into the intersection, a red Honda had completed its turn and was "not the cause of the accident". 3. Senior Constable Bennie attended Mr Parker's home on 5 August 2019 and said that no-one was at fault for the accident and that Mr Parker happened to be "in the wrong place at the wrong time". 4. The CTP insurer denied liability on 11 August 2019 and advised Mr Parker that he was the driver at fault. 5. Mr Parker did not consider claiming again until 11 June 2011 when his wife arranged for him to see Carroll & O'Dea to obtain advice in relation to his workers compensation rights. 6. Carroll & O'Dea obtained a report from Carrington Investigations. 7. Carroll & O'Dea obtained a written advice from Senior Counsel dated 24 November 2011. 8. On 29 November 2011 Carroll & O'Dea wrote to Mr Parker and said, inter alia: "We do not believe that you have reasonable prospects of success and therefore would not recommend that you proceed with your claim". 9. Mr Parker discussed the Carroll & O'Dea advice with his wife and reached the view that the only sensible thing to do was to follow the advice, as if he lost a case he would have to sell the house to pay court costs (PX 1, par 18). 10. Mr Parker did not receive any further legal advice in relation to a claim under the Act until September 2019 when Mrs Parker instructed G & S Law Group to advise about Mr Parker's workers compensation entitlements. 11. Mr Parker had a conference with Mr Hallion of counsel on 20 September 2019. Mr Hallion advised that he was familiar with the intersection. Mr Hallion provided a critique of the COPS Report and the witness statements which caused Mr Parker to change his view and accept that he could well have a viable claim under the Act (PX 1, par 35). 12. After the conference Mr Parker started to obtain further material in support of a claim under the Act.
2. At the time of consulting Carroll & O'Dea in 2011 Mr Parker was not given a copy of the Carrington Investigations report and did not have a conference with Senior Counsel. He did not understand how an expert report, referred to in a letter of advice from Carroll & O'Dea, would help him, as the police had concluded that he was at fault.
3. Given the concession by Senior Counsel that the explanation provided by Mr Parker was "full" and given that the focus in relation to whether the explanation was "satisfactory" revolved around the actions of Mrs Parker, it is unnecessary to consider Mr Parker's affidavit in greater detail. However, it is instructive to look at some of the correspondence from Carroll & O'Dea from 2011.
4. Carroll & O'Dea wrote to Mr Parker by a letter dated 27 June 2011 (PX 2, Tab EC-1-5). The letter mostly concerned the workers compensation claim, but in relation to a potential claim under the Act it said: "Given the above and the potential difficulties in pursuing a CTP claim, we advise that we will not be pursuing a CTP claim at this time."
5. The report of Carrington Investigations is dated 8 November 2011 (PX 2, Tab ED-1-15). As recited above, Mr Parker did not see this report at the time. It does contain signed statements by three other persons who were in the vicinity of the intersection and witnessed the accident. All of those statements, if accepted, would place some blame upon the driver of a red Honda who was observed to make a turn across the path of Mr Parker's motorcycle.
6. This report was briefed to Senior Counsel, who provided a very short advice dated 24 November 2011 (PX 2, Tab EE-1-3). The advice focusses upon the potential liability of another motorcycle travelling through the intersection. The advice makes no reference to the statements from the other three witnesses which were attached to the Carrington Investigations report. The advice concluded as follows: "I am not convinced your client has a case that he is going to be able to prosecute successfully, but if it is to be such, it is more likely than not against an identified vehicle than otherwise. If your client wishes to pursue the matter further you need to qualify someone such as Grant Johnston to do a reconstruction based upon all the known circumstances to see whether any blame can be attributed to either an unidentified vehicle (the other bike) or the driver of the red vehicle who has been identified on a police report, but not by name."
7. A copy of this advice was sent to Mr Parker by Carroll & O'Dea by a letter dated 29 November 2011 (PX 2, Tab EE-1-3). The letter concluded as follows: "We advise that given [Senior Counsel's] views, we do not believe you would have reasonable prospects of success and therefore would not recommend that you proceed with your claim. We advise that we would be happy to request a report from a liability expert, however we would ask that you pay for the expert's report which would costs [sic] approximately $3,000 to $4,000."

Evidence of Mrs Parker

1. In her affidavit (PX 3) Mrs Parker said that since her husband's motorcycle accident, he has experienced problems in terms of memory, organisation, decision-making and mood. This has meant that Mrs Parker has had to assist her husband in making decisions about his personal affairs.
2. Mrs Parker worked as a legal secretary and completed legal studies through the Legal Profession Admission Board in 2006. Mrs Parker was admitted as a solicitor in 2007. Mrs Parker did not practice in personal injury law, although of course she understood the concepts of negligence and fault.
3. Mrs Parker attended the hospital on the day of the accident when her husband was in the Intensive Care Unit. She spoke to Senior Constable Bennie at the hospital. He told her that the driver of a car which turned in front of Mr Parker was a nurse in the ICU and said: "You wouldn't want the person who saved your husband's life to be charged". Mrs Parker did not become aware that there were witness statements which contradicted the opinion expressed by Senior Constable Bennie, which was to the effect that no-one was at fault for the accident. When Senior Constable Bennie attended the Parker home on 5 August 2009 he said that the accident "was just one of those things that just happened". He expressed the opinion that there was no-one to blame. He said that the witnesses had all seen different things.
4. In 2011 Mrs Parker arranged for her husband to see Carroll & O'Dea in relation to his workers compensation rights. She told that firm that the police had said that they could not work out what happened and there was no-one at fault. Her impression of the advice given by Carroll & O'Dea was that if further information came to light concerning the motor vehicle accident, then Mr Parker needed to know about time limitations.
5. Mrs Parker was organising for her husband to receive legal advice and she organised for a form to be sent to the CTP insurer. Her understanding of the advice from Carroll & O'Dea about a potential claim under the Act, was that there were no reasonable prospects for Mr Parker to prove fault by another driver. Mrs Parker and her husband never met Senior Counsel who provided the advice. She did not understand how a reconstruction expert could change the facts. So far as she was concerned, the advice from Senior Counsel just confirmed what she and her husband had been told by the police.
6. Mrs Parker said that while there was a discussion with Carroll & O'Dea about making a claim against the Nominal Defendant (in relation to the possible involvement of another motorcycle in the accident) there was never a discussion about making a claim based upon fault on the part of the red Honda driver. Mrs Parker said that the solicitors did not advise that a claim form should be submitted to the CTP insurer. Since the solicitors were advising Mr Parker not to proceed with the claim under the Act, she saw no need to lodge a claim form.
7. Mrs Parker instructed G & S Lawyers in 2019, because of dissatisfaction regarding the conduct of her husband's workers compensation claim. It was only then that there was a discussion with that firm and counsel retained, concerning the involvement of the red Honda and the prospect of a claim under the Act. Until that time the only advice Mrs Parker and her husband had received about the need to make a claim was the advice given in 2011 not to make a claim as it would not succeed.
8. Mrs Parker was cross-examined as to why she and her husband did not seek legal advice between 2009 and 2011. She said that her main reason was that Senior Constable Bennie had come to their home and said that the accident was just one of those things. The years between 2009 and 2011 had been occupied by Mr Parker slowly recovering from his injuries, financial matters, and family matters. These were detailed in the affidavits filed in support of the present application.
9. In cross-examination Mrs Parker said that she did see the witness statements attached to the Carrington Investigation report at around the time that Senior Counsel provided advice. Mrs Parker said that based on being told that there wasn't a claim, she couldn't see how getting an expert report would change the facts. It was put to Mrs Parker that Carroll & O'Dea and Senior Counsel did not foreclose a claim under the Act, but her understanding was that they suggested that it would not be successful. While she had seen the statements of the witnesses attached to the Carrington Investigation report, Mrs Parker had in mind that the police officer had said that everyone had seen something different.
10. It was suggested to Mrs Parker in cross-examination that she had ignored the possibility of a claim under the Act. Her response was that she believed that there was no claim that could be successfully made. It was not until Mrs Parker spoke to Mr Hallion in 2019 that she was told that there was a potential claim under the Act.
11. I have no hesitation in accepting everything that Mrs Parker said. She was candid, forthright and consistent in her answers in cross-examination.

Submissions for the Plaintiff

1. The submissions made by Senior Counsel for the plaintiff were short and to the point. He submitted that Mr and Mrs Parker were focussed upon whether there was a viable cause of action under the Act. They received advice that there was no worthwhile claim and they acted on that advice. The submission was (MFI 2, par 20): "A reasonable person in the position of the Plaintiff would have accepted that he did not have reasonable prospects of succeeding based on the advice he was given and even though that advice was incorrect… it was reasonable for him to act on it."

Submissions for the Defendant

1. Senior Counsel for the defendant submitted that the plaintiff made a deliberate decision in 2009 to claim workers compensation benefits rather than to proceed with a claim for motor accident damages under the Act, because of the potential difficulty in proving fault on the part of another driver (MFI 3, par 45). Senior Counsel further submitted that the plaintiff made a deliberate decision to allow time limits under the Act to pass and to pursue a workers compensation claim instead.
2. However, that submission does not take proper account of the fact that the advice in 2009 was not to claim under the Act. This is not a case where a claimant has decided to maximise workers compensation benefits, and then, depending on the outcome of a workers compensation claim, defer further consideration of a claim under the Act and deliberately allow a time limit to expire.
3. Senior Counsel for the defendant submitted that Mr Parker had the advantage of being assisted, supported and represented by his wife, who was legally qualified (MFI 3, par 47). The authorities are to the effect that the court must take account of assistance obtained by a claimant, and this is particularly so where the plaintiff has legal assistance from a family member. The actions of Mrs Parker on her husband's behalf must be considered. I accept those submissions.
4. However, I take into account that Mrs Parker, while a legal practitioner, had no expertise in, or experience of, motor accident claims. In this regard, both Mrs Parker and her husband were reliant upon the advice they received in 2011 from Senior Counsel, and from solicitors who were experienced in claims under the Act.
5. Senior Counsel submitted in oral submissions that the objects of the Act must be taken into account. The primary object is to enable the early resolution of claims, so to permit this claim to proceed after a delay exceeding 10 years would be contrary to the objects of the Act. I accept the submission that the objects of the Act must be taken into account. Nevertheless, the Act provides for leave to be granted to bring proceedings out of time in an appropriate case and provides a definition of the nature and quality of the explanation which has to be provided in order for such leave to be exercised in favour of a late claimant.

Consideration of the Explanation for Delay

1. The explanation put forward for delay in lodging a claim form, and delay in commencing proceedings, is the same. Mr Parker, assisted by his wife, received legal advice from highly qualified practitioners in 2011 recommending against bringing a claim under the Act. That advice was accepted.
2. The decision not to proceed further with a claim under the Act was influenced not only by that advice, but by the fact that at the time Mr Parker could not afford to pay for an expert report. Further, both Mr Parker and Mrs Parker were of the view that nothing could change the facts of the accident, which according to the police led to the conclusion that no-one was at fault.
3. It would have been a bold and risky decision to proceed with a claim under the Act, against the advice of Senior Counsel and experienced solicitors, when Mr Parker had no direct evidence of what happened in the accident, and when he and his wife were under financial pressures which meant that they could not afford to make a claim and lose it.
4. Section 109(3)(a) of the Act provides that the leave of the court to bring proceedings out of time must not be granted unless the claimant provides a full and satisfactory explanation to the court for the delay.
5. The defendant concedes that the explanation provided is full. I find that the explanation provided is a satisfactory explanation because a reasonable person in the position of Mr Parker would have been justified in experiencing the same delay.
6. The delay between 2009 and 2011 has been explained. Mr Parker was recovering from serious injuries suffered in the accident, was receiving workers compensation benefits and was trying to get back on his feet. A police officer who investigated the accident, and who came to his house, had told him that all of the witnesses said different things and that there was really no-one at fault for the accident. It is instructive that when Mr Parker did seek legal advice in 2011 it was in relation to his ongoing workers compensation claim. The prospect of a claim under the Act was investigated by the solicitors, but not at the behest of Mr or Mrs Parker.
7. The delay between being advised that there were no reasonable prospects of success in 2011, and different advice being obtained in 2019, is explained by the fact that once a decision was made in 2011 not to pursue a claim under the Act, neither Mr nor Mrs Parker had any reason to turn their mind back to such a claim, until they were advised by Mr Hallion that there may be prospects of a successful claim. Once this advice was tendered, Mr Parker and Mrs Parker acted with all due despatch in obtaining further information, pursuing the claim and commencing proceedings. As previously recited, the defendant is not concerned with the period when the matter was in the CARS process.
8. I find that a reasonable person in the position of Mr Parker would have been justified in experiencing the same delay. Any reasonable and prudent person who received advice from Senior Counsel of vast experience, and from solicitors with expertise in claims under the Act, such as the advice tendered to Mr Parker in 2011, would have made the same decision ie to not pursue the claim. Reasonable people not only seek legal advice about their rights, but once that advice is tendered, they act in accordance with that advice. In those circumstances, Mr Parker has a satisfactory explanation for the delay.

Costs

1. Mr Parker has come to court seeking an indulgence, and the usual order is that such a party should be ordered to pay costs. The defendant ran its opposition to the Notice of Motion in a measured and economical fashion, and only litigated the true issue. The delay of such a lengthy period called for a full and satisfactory explanation and in my view the CTP insurer was justified in opposing the Motion and in cross-examining Mrs Parker, given her legal background.
2. In my view the appropriate order is that Mr Parker should pay the defendant's costs of his successful application for leave to bring proceedings out of time.

Orders

1. The orders of the court are: 1. Grant leave to the plaintiff nunc pro tunc to commence these proceedings by the Statement of Claim already filed. 2. Order the plaintiff to pay the defendant's costs of the plaintiff's Notice of Motion filed on 30 June 2022.

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: 09 November 2022