On 24 May 2006, Barry Parrish, a police officer, attended a single vehicle accident involving a truck on the Hume Highway near Bargo. Subsequently, a B Double semitrailer collided with a police car parked in advance of the accident site causing the police car to become airborne and strike the truck driver of the initial accident, which resulted in the death of the truck driver.
Mr Parrish avoided being hit by the car but subsequently suffered a hernia, knee injuries and psychological trauma from the event. Mr Parrish had surgery in June 2006 and remained off work until November 2006. He had further surgery on his knees in 2008, 2009 and 2011 and had other operations in 2010 and 2012. He received workers' compensation benefits in respect of the incident and other incidents.
Between February 2007 and 17 February 2011, the date when he was medically discharged from the New South Wales Police Force, Mr Parrish had various periods off work. He has not worked in any capacity since August 2008. Mr Parrish, in his own affidavit and by other affidavits including his solicitor's, gave a detailed account of his circumstances, injuries, operations and legal advice in the period until 18 September 2013, the date he gave an explanation for his delay in serving a personal injury claim form. The personal injury claim form was served on about 5 November 2012.
Proceedings for damages for negligence were commenced on 29 April 2014 against the driver and owner of the semitrailer ("Olympic Roadways"). The defendants, Olympic Roadways Pty Ltd and Rodney Broome, filed a notice of motion on 4 June 2014 seeking the following orders:
"1 That the proceedings be dismissed pursuant to Section 73(5) of the Motor Accidents Compensation Act, 1999.
2 In the alternative, that the proceedings be dismissed on the grounds that the Plaintiff has failed to obtain the leave of the court as required by Section 109(1) Motor Accidents Compensation Act, 1999.
3 The Plaintiff pay the First and Second Defendants' costs of the Notice of Motion."
Parrish v Olympic Roadways Pty Ltd [2015] NSWDC 157 | Case summary | Zoe
On 29 July 2014, Mr Parrish filed a notice of motion seeking the following orders:
"1 A declaration that the Plaintiff has provided a full and satisfactory explanation for the lateness of his claim pursuant to Section 73 of the Motor Accidents Compensation Act 1999.
2 The Plaintiff be granted leave to continue proceedings No 2014/127936 nunc pro tunc pursuant to Section 109 of the Motor Accidents Compensation Act 1999.
3 Costs of this notice of motion be costs in the cause."
Section 73(5) and (7) of the Motor Accidents Compensation Act 1999 provides:
"73 Late making of claims
…
(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.
…"
Section 109(1) and (3)(a) of the Motor Accidents Compensation Act 1999 provides:
"109 Time limitations on commencement of court proceedings
(cf s 52 MAA)
(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.
…
(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
…"
As is apparent, both the late notification of the claim and the late commencement of proceedings raise an issue about whether Mr Parrish has provided a full and satisfactory explanation for the delay in respectively making the claim and commencing proceedings.
Section 66 of the Motor Accidents Compensation Act 1999 defines what is required to constitute a full and satisfactory explanation. It relevantly provides:
"66 Definitions
…
(2) 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."
The area of dispute in this application has been narrowed by the approach taken by the parties. Both parties submitted that whether there has been a full and satisfactory explanation for the delay depends upon whether on or about 22 October 2007 Mr Parrish received a letter from Walter Madden Jenkins, his then solicitors. That letter contained advice about a claim under the Motor Accidents Compensation Act 1999 including the need to lodge a claim form within six months. It purported to enclose a motor accident injury claim form and stated:
"If you are interested in pursuing such a claim, we suggest that you complete and return this form to our office urgently. You will note that there is a medical certificate which you should have completed by the treating medical practitioner you consulted following the motor vehicle accident. That medical certificate should also be returned to our office with the completed claim form.
We also enclose an authority to Medicare which will enable us to obtain from them a claims history statement in respect of any treatment expenses which may have been paid through Medicare."
The letter also stated:
"If you decide you are interested in pursuing a motor accident claim, it is necessary to lodge the Motor Accident Personal Injury Claim Form as a matter of urgency. The legislation requires a claim form to be lodged within six months of the date of accident. A claim can be made more than six months after the accident but the claim may be rejected if you cannot provide a satisfactory reason for the delay. If you are interested in pursuing a claim under the Motor Accidents Compensation Act 1999, we would be able to assist you in drafting an explanation for that delay."
Mr Parrish says that he did not receive this letter. In his affidavit filed 8 August 2014 he states at paragraph 92:
"On 22 July 2013, I was shown a copy of a letter from Walter Madden Jenkins dated 22 October 2007, by Ms Ryan of Maurice Blackburn Lawyers. I have not previously received or seen this letter."
The affidavit also contained this evidence from Mr Parrish:
"69. During my discussions with Mr Hammond detailing my accident, I was advised by Mr Hammond that I was able to pursue my matter through the workers compensation scheme.
70. Mr Hammond however, advised that because I was not physically hit by a motor vehicle during the accident on 24 May 2006, I could not pursue a motor vehicle accident claim.
71. I was also advised that as I already had a workers compensation claim lodged with the workers compensation insurer regarding the accident on 24 May 2006, I could not pursue any other type of claim.
72. I was never provided with advice regarding the time limits involved in lodging a motor vehicle accident claim form by Walter Madden Jenkins.
73. Should I have been advised that I had the option of also pursuing a motor vehicle claim through the CTP insurer for the vehicle at fault being the prime mover, I would have complied with the requirements of lodging that claim.
74. If I had been provided with a claim form to complete, I would not have hesitated to complete it. I would have done anything required of me in order to protect my rights and interests regarding the motor accident on 24 May 2006, the subject of this claim."
None of those paragraphs were objected to or were the subject of cross‑examination, subject to some matters I will mention below.
Danielle De Paoli, the solicitor with carriage of the matter for Mr Parrish, stated in her affidavit dated 7 August 2014 at paragraph 56:
"On 22 July 2013, Ms Ryan spoke with Mr Parrish in conference advising that we still required further information in order to complete his Statutory Declaration. Ms Ryan also presented Mr Parrish with a letter from Walter Madden Jenkins dated 22 October 2007, which he confirmed he had never seen or received a copy of."
At that stage, Ms Ryan was the solicitor with carriage of the matter.
On 21 January 2015, two days before the hearing of the motion, Danielle Verdi, a solicitor assisting Danielle De Paoli acting for Mr Parrish swore an affidavit which annexed the letter referred to by Mr Parrish and Ms De Paoli in the passages of their affidavits I have quoted above. Mr Parrish gave oral evidence. He again confirmed that he did not ever see the 22 October 2007 letter until it was shown to him on 22 July 2013. He also referred to the peculiarity that the letter was written by Susan McTegg, solicitor, whereas he claimed to have dealt with Mr Misha Hammond of Walter Madden Jenkins.
Another affidavit of Ms Verdi dated 22 January 2015 included an email from Mr Hammond stating that he had no memory of his dealings with Mr Parrish. There was no indication that Mr Hammond was shown a copy of the 22 October 2007 letter by Ms Verdi.
Mr Parrish also gave evidence that all the correspondence from Walter Madden Jenkins that he received dealt only with his workers' compensation claims, and did not deal at all with the motor accident compensation claim. The defendants called for that correspondence, but it was not in court and not able to be produced immediately. The defendants did not further press that call.
In cross-examination, Mr Parrish accepted that he resided at the address stated on the letter of 22 October 2007. He gave evidence that he terminated the retainer of Walter Madden Jenkins in 2010 because, he said, that they had failed to respond to correspondence and queries from him and had not attended court on one occasion of importance. He said that he personally had had no contact with them since the termination of the retainer.
Mr Parrish also gave evidence consistent with his affidavit that he was told by Mr Hammond that he could not claim damages under the Motor Accidents Compensation Act 1999 because he was not hit by the motor vehicle. He could not recall if he raised the matter.
Accordingly, on the one hand I have the copy letter signed by Ms McTegg dated 22 October 2007 addressed to Mr Parrish at his correct address. On the other, I have the contrary evidence from Mr Parrish that he did not receive the letter and that if he did, he would have completed the claim form. It seems to me that both Ms McTegg and Mr Hammond might have given evidence that could have assisted the determination of the factual question as to whether the letter was sent and received. Neither were called. Should either party have called them? Mr Parrish terminated the retainer due to the alleged lack of proper service. He disputed the letter being sent. I cannot see how he was obliged to call a former solicitor about a letter he denied ever receiving.
The defendants only received a copy of the critical letter two days before the hearing. However, they do not rely upon the late provision of the letter as a reason for not leading evidence from Ms McTegg or Mr Hammond. Rather, the defendants submitted that the onus lay upon Mr Parrish to show a full and satisfactory explanation and thus to call evidence relevant to the letter.
I do not accept that the obligation on Mr Parrish to provide and establish a full and satisfactory explanation required him to call all evidence, favourable or not, that could possibly be relevant to that matter.
The nature of the evidence that might be expected to be given via Ms McTegg and possibly Mr Hammond could have assisted the defendants. On the other hand, Ms McTegg was a solicitor employed by Walter Madden Jenkins, Mr Parrish's former solicitor, and there may well have been matters connected with privilege which restricted her from disclosing to the defendants matters related to that letter.
In the result, I do not think I should regard the failure by the parties to call evidence either from Mr Hammond or Ms McTegg as giving rise to an adverse inference against either party. It is not a case, in my view, where Jones v Dunkel has application to make an inference more or less likely. It is simply potentially relevant evidence that is not available to the Court.
Mr Parrish was not challenged on his account, either of what he was told by Mr Hammond or of his non-receipt of the letter. I accept that the defendants might not have been able directly to put the contrary proposition that the letter was received as they had no direct knowledge of that. But they could have tested or explored the matter more than they did, including exploring the evidence of Mr Parrish that he would have completed the claim form if he had received the letter.
I do not have any real evidence that the letter of 22 October 2007 was posted. The copy annexed to the affidavit is a copy letter from the file. I have no evidence about the practice of keeping copies of letters, whether they were posted or not, nor do I know whether the letter on the file was a copy of the signed letter or the actual original signed letter itself which, if it was present, would suggest that it was not sent. Nor do I have evidence as to whether the practice was to keep a copy of the signed letter rather than keep an unsigned copy.
In the circumstances, I prefer the affidavit evidence of Mr Parrish to the possible inferences that may arise from the existence of a letter on the file of Mr Parrish's former solicitors without any evidence as to whether such a letter was sent. While documentary evidence is generally to be preferred to oral recollections (see Watson v Foxman (1995) 49 NSWLR 315 at 318-319), in the present case there is no evidence to identify what was done with the letter, or what inference should be drawn from its presence on the file. Thus, this is not properly the case of preferring oral evidence over the written document.
It follows from the concessions of the parties that I find the explanation of delay to be full and satisfactory and I grant leave under s 109 nunc pro tunc to commence the proceedings.
As to costs, Mr Parrish sought an order that costs be costs in the cause, while the defendants sought an order that each party pay their own costs. The plaintiff has succeeded on the application and has provided a full and satisfactory explanation for the delay, which means by s 66(2) of the Motor Accidents Compensation Act 1999 he has acted as a reasonable person.
In the event that the plaintiff succeeds in the proceedings, I see no reason why he should be deprived of his costs of this application, given that he has acted reasonably and has succeeded on the application. This is not a case like Holt v Wynter (2000) 49 NSWLR 128, where he has, by a deliberate decision, allowed the limitation period to expire (see generally Afarin v Excelior Pty Ltd [2013] NSWDC 65 at [26] - [41], Ly v Mukdassi [2013] NSWDC 257 at [37] - [40]).
The orders of the Court are:
1. Plaintiff be granted leave to continue these proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999.
2. Costs of the notices of motion be costs in the proceedings.
3. The notices of motion be otherwise dismissed.
4. List for directions on Thursday, 5 February 2015 at 9.30am before the Judicial Registrar.
[2]
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Decision last updated: 11 August 2015