Pattie v Panetta

Parties and representation

1. The name of the police officer is Fiona Pattie. She is the plaintiff in the case. The name of the other driver is Salvatore Antonio Panetta. He is the defendant in the case.
2. Both parties were represented by very competent junior counsel. The plaintiff was represented by Ms J Gumbert and the defendant was represented by Mr N Ghabar. Both were of considerable assistance to me in resolving this issue fairly expeditiously.

The legislation

1. The relevant law is the Motor Accidents Compensation Act 1999. Section 72 deals with making claims against insurers. Section 72(1) is the relevant provision. It says - "72(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 …". The following section deals with the late making of claims. Section 73(1) relevantly provides as follows - "73(1) A claim may be made more than 6 months after the relevant date for the claim under s 72 … if the claimant provides a full and satisfactory explanation for the delay in making the claim...".
2. Section 109 of the Act is the provision concerning time limitations on the commencement of court proceedings. Section 109(1) relevantly provides as follows - "Section 109(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 … except with the leave of the court in which the proceedings are to be taken." Section 109(3) goes on to provide as follows - "Section 109(3) The leave of the Court must not be granted unless: (a) the clamant 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 no 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." It is common ground that the relevant figure representing "not less than 25 per cent of the maximum amount … as at the date of the relevant motor accident" is $91,500.
3. I should add one further reference. Section 73(5) provides as follows - "Section 73(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." Relevant also is subs (7) which provides as follows - "Section 73(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."
4. It will be obvious from references to those pieces of legislation that it is important to understand the meaning of "a full and satisfactory explanation". Parliament has helpfully provided that explanation in the definitions provision, which is s 66. Subsection (2) provides as follows - "Section 66(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." I have also helpfully been referred to various authorities which deal with the construction of those provisions or their predecessors. In particular Walker v Howard [2009] NSWCA 408; 78 NSWLR 161, Smith v Grant [2006] NSWCA 244; 67 NSWLR 735, Brierley v Ellis [2014] NSWCA 230, and Eades v Gunestepe [2012] NSWCA 204.

Issues

1. The question for me to determine is raised by two notices of motion. The defendant in the proceedings, Mr Panetta, filed a notice of motion asking that the "proceedings be dismissed on the ground that the plaintiff failed to give notice of the claim as required by s 72" and, in addition, that the "proceedings be dismissed on the ground that they were commenced outside the time limited by s 109" of the Act. In addition, because she needs leave to commence the proceedings the plaintiff, Ms Pattie, filed a notice of motion asking that "pursuant to s 109(1) of the Motor Accidents Compensation Act 1999, the plaintiff be granted leave, nunc pro tunc, to commence proceedings by the filing of the statement of claim on 17 April 2014".
2. The question for me to resolve in determining both issues is whether Ms Pattie has provided a full and satisfactory explanation for not complying with either deadline.
3. Mr Ghabar made it clear that the primary issue is whether the explanation was satisfactory rather than whether it was full. Ms Gumbert, alert to the fact that I still needed to find that her client's explanation was full, argued that Ms Pattie had given an account - and a very fulsome one - of all of the relevant events. I think both counsel have realistically addressed that issue and I am satisfied from the accounts given by Ms Pattie that her explanation is full.

Evidence

1. I have considered evidence presented on behalf of Ms Pattie in the form of an affidavit by her completed on 9 October 2014 and an affidavit by her solicitor, Ian Chipchase, completed on the same day. In addition, Ms Pattie was called to give evidence and cross-examined by Mr Ghabar. Additionally, Mr Ghabar tendered a report from a psychologist which became exhibit 1 and some medical notes from a medical practice which became exhibit 2.
2. I do not propose to recite the evidence, but I will refer to certain aspects of Ms Pattie's evidence which it seems to me were important. Her evidence, I should say, covered her own background, the circumstances of the accident, the treatment which she had received since the accident, including her physical, psychological and psychiatric condition. It also referred to her time off work, the circumstances of her employment, her personal relationship and the fact that she was able to return to work on adjusted duties for a good part of the time.
3. It is important to observe that over the six years or so that elapsed, Ms Pattie had three consultations which will become relevant. One was with a person who was effectively her human resources manager. A second was with a solicitor whom I will refer to as the first solicitor. The third was with another solicitor whom I will refer to as the second solicitor.
4. It occurs to me that I have not mentioned that the car accident itself was on 8 September 2007. That means, I derive from Mr Ghabar's helpful chronology which was marked for identification 1, that the last day for filing the s 72 claim form was 8 March 2008 and the three year limitation period for commencing court proceedings for damages expired under s 109 on 8 September 2010.
5. Returning to the three consultations I referred to, I should say a little about each of them. The man I described as effectively her human relations manager is more accurately called her local area manager. His name is John Bell. During 2007 she had a conversation with him which she recounts in para 24 of her affidavit. Ms Pattie told him that she was losing money because she was on restricted duties and she says that he replied that she is "still better off on workers compensation as you are getting make up pay". Mr Bell illustrated his point by way of example using a pen. There is no need to describe that in detail, but he effectively said that if a further injury occurred to a relevant part of her body then "you're still covered by workers compensation. But if you go through CTP Insurance you are no longer covered for that injury at all in case of future re-injury and you will have to repay everything you have been."
6. The consultation with the first solicitor occurred on 15 February 2010. Ms Pattie had contacted her union, the Police Association, who referred her to a solicitor. She phoned the first solicitor and told him about the accident. She told him that she was "losing money and wondering what I should do about it". She records his response as follows - "You should just stay with workers compensation and not proceed through CTP Insurance as you would have to repay any money that has been paid out through the workers compensation insurer, and you would always be covered for that injury if you stay on workers compensation." She has no recollection of the first solicitor advising her of any time limits for lodging a claim against the CTP Insurer, nor did she receive any follow-up correspondence from the first solicitor.
7. Towards the end of 2012 Ms Pattie spoke to the second solicitor. Again, she told him about the circumstances of her accident. What prompted the call was news that she had gleaned about changes in workers' compensation legislation. She told him about the fact that she was losing money. Ms Pattie records the second solicitor as saying as follows - "It'll be okay. You're on workers comp. You can make a CTP claim too. There is a time limit in which to make these claims, but we can get around that, it shouldn't be a problem. Don't you worry about that. I'll send you some forms." The second solicitor sent her forms not concerning a CTP claim but concerning a workers' compensation claim.
8. I should now make a note of some of the evidence given by Ms Pattie when she was cross-examined by Mr Ghabar. Mr Ghabar, whose cross-examination of an obviously distressed Ms Pattie was comprehensive but respectful and effective, asked her about her knowledge of third party personal injury insurance. She said that she had never come across it or been involved in it or had occasion to think about it. She regarded the "green slip" as part of the registration procedure. Her duties as a police officer obviously involved her attending car accidents but her main role was to determine whose fault the accident was. She also said that she had phoned the first solicitor on the same day as she had spoken to the Police Association. Mr Ghabar questioned her about her reliance on what she had been told by Mr Bell. She believed that she could rely upon him because he "runs the local area command". She said that he oversees rosters and payments and is the head of administration. She re-affirmed his advice that she could receive workers' compensation but no advice about proceeding with a claim elsewhere apart from the reference to the third party scheme. She regarded him as holding a lot of responsibility and regarded him as being "across the board on everything". Mr Ghabar reasonably asked her why she did not consult a lawyer after talking to Mr Bell and she said she did not because she relied upon what Mr Bell told her as true.
9. Ms Pattie confirmed her conversation with the first solicitor on 15 February 2010 and that he had told her to stay with workers' compensation and not to go with CTP because she would have to repay. She acknowledged that the telephone call with the first solicitor was very short, but also confirmed that the first solicitor did not tell her anything about time limits.
10. Mr Ghabar explored the obvious contrast in the information Ms Pattie had been given between workers' compensation and the alternative of CTP. Ms Pattie acknowledged that she now understood the third party personal injury insurance scheme but, as she told Ms Gumbert in further examination, she had become very depressed and anxious around 12 months after the accident. As she expressed it, she heard the reference to it but did not understand it. Pressed further, she said that was "barely coping with work" and everything else, and was not in a position to consider issues such as that.
11. Mr Ghabar explored whether she felt "fobbed off" by the first solicitor and why she accepted his advice given over such a short telephone call. She answered by saying that she relied upon him because he was a solicitor with a law degree. As she said, she was "given advice about staying on workers' compensation. They are the experts, not me".
12. Another thing Ms Pattie gave evidence about under questioning by Mr Ghabar was her ongoing medical condition, both physical and psychological or psychiatric. He suggested that it must have been obvious to her that she was not improving and needed to consider her legal position and her entitlements. But she responded that, over time, the doctors had been advising her that she was likely to improve. The improvement may take some time. It could take a month or 12 months or two or three years. However, as she explained, the improvement never occurred. It was the prospect of the improvement held out by the doctors which, she said, prompted her to remain receiving her workers' compensation without considering alternatives. I should add that was one of the factors which was relevant.
13. Cross-examined about her consultation with the second solicitor, again Ms Pattie consulted him very soon after she was told about obtaining legal advice. After that telephone consultation, that solicitor sent her forms. The form turned out to be, she graphically described, some 50 pages which was overwhelming for her and she did not complete it. More significantly, the forms concerned workers' compensation, not a third party claim. That is confirmed by correspondence annexed to the affidavit of Mr Chipchase. Ms Pattie recalls the second solicitor reassuring her about the lateness of any alternate claim but saying that they could "get around" that issue.
14. Pressed by Mr Ghabar about why she did not make an effort to complete the workers' compensation claim form, she responded that at that stage she "could not cope with anything". She added that she was not even answering her own phone and was "barely coping". She spoke to the second solicitor only via phone and received correspondence. She never saw him. Pressed by Mr Ghabar about why she did not realise that she had to take account of her rights, given the seriousness of her condition, she said that she knew that it was important but she was not thinking clearly at that time.
15. When Mr Ghabar asked Ms Pattie about the workers' compensation form that she had received to be filled in and whether that prompted her to think about the alternative of a third party claim, she said, revealingly, that she understood the third party claim was more like a back-up, a bit like a back-up charge in the criminal law and that she had been reassured that she could pursue that as a late claim.
16. In further examination by Ms Gumbert, Ms Pattie explained what she was doing during three periods. Emphasised by Mr Ghabar as relevant - namely between June 2008 and April 2009, between April 2009 and November 2009 and between April 2010 and March 2011 - she said for each period that there was no change in her state of knowledge and that she was still receiving treatment or could not recall what was going on at that particular time.

Submissions and resolution

1. I turn now to the arguments presented by Mr Ghabar and Ms Gumbert and to the resolution of this case. Mr Ghabar acknowledged that the real issue was whether Ms Pattie had provided a satisfactory explanation and queried why she would accept the advice given by John Bell. I regard her acceptance of that advice as quite reasonable and that a "reasonable person in the position of" Ms Pattie would have accepted that as well. She had limited, if any, experience in third party personal injury matters. It was simply, as Ms Gumbert accurately described it, more of an "abstract idea" rather than any specific knowledge of her rights. I think because of Mr Bell's position and how he was regarded, that it was very reasonable for Ms Pattie to accept his advice and not to question it further and that a reasonable person in her position would have done the same.
2. Although she knew about the two systems as Mr Ghabar pointed out, Ms Pattie had no occasion to turn her mind to the alternative third party personal injury system. In fact, she acted very appropriately and expeditiously in obtaining advice when prompted to do so. She then relied upon the advice which she was given. She is not a lawyer. Her familiarity with the law is no doubt dominated by criminal law rather than civil law. As she accurately pointed out, she regarded the people she consulted - the first solicitor and the second solicitor - as experts and professionals with law degrees and, in my opinion, she had no reason to doubt their advice. I would regard a person in her position to have the same attitude.
3. I agree that Ms Pattie must have been concerned about her condition and its relation to the car accident, as Mr Ghabar pointed out. But I also regard her actions in seeking advice from qualified and responsible people - namely the person effectively in charge of human relations at her employment and two solicitors - as reasonable and consistent with the action of a reasonable person.
4. The advice she was receiving was also consistent in staying with her workers' compensation entitlements. The forms she failed to fill out were workers' compensation forms. She says that and it is consistent with the correspondence from the second solicitor. They were not third party forms.
5. It is difficult to understand what more Ms Pattie might have done, apart from relying on the three people that I have referred to, each of them objectively reliable because of the positions they held, their experience and their qualifications. It is not as if she relied only on one person. Over the period of time she consulted three such persons and all of their advice was consistent.
6. Mr Ghabar pointed out that the completion of the workers' compensation forms was equivalent to a clerical exercise which Ms Pattie was able to undertake on her restricted duties at work. But on the other hand she was significantly depressed. The medical evidence attached to Mr Chipchase's affidavit supports that and she needed the intellectual and emotional resources to complete the form and pursue any claim, be it workers' compensation or third party. One must bear in mind that her emotional state was completely drained and that she was suicidal. Indeed, she acknowledged that she had gone as far as beginning an attempt to take her own life at one stage.
7. Mr Ghabar argued that it was Ms Pattie's responsibility to maintain her claim diligently, particularly between the advice she got from the second solicitor. He is right about the need for a claimant to be diligent in maintaining their claim But I must bear in mind here that the information she received concerned workers' compensation rather than third party rights and, in addition, her mental state was as I have described it. A reasonable person in the position of Ms Pattie would also be likely to respond in a similar way. Despite the fact that she was told by the second solicitor that she was out of time, she had been reassured at the same time by him that it would not be a problem. As she said in her affidavit, she knew after speaking to the second solicitor "that even if I wanted to make a claim, then I would be able to because it was possible to make a claim even after the 3 year time limit had expired" (paragraph 87).
8. I accept Ms Gumbert's argument that her client, although aware of the existence of an alternative to workers' compensation, was unaware of the time limits issue between her accident and 2012 when the second solicitor mentioned it in passing. Again, Ms Gumbert emphasised that her client had been receiving consistent advice not to pursue her third party rights.
9. For the reasons that I have given, I regard Ms Pattie's explanation for her non-compliance with any statutory duty or for the delay - in other words, for missing the deadlines - as both full and satisfactory. I have taken into account her actions, knowledge and belief from the date of the accident until the time that she provided her explanation. I accept that a reasonable person in her position would have failed to have complied with the duty or would have been justified in experiencing the same delay.

The likely damages question

1. Before I can grant leave for her to commence proceedings I have to turn to the question posed by s 109(3) of the Motor Accidents Compensation Act whether the "total damages of all kinds likely to be awarded" to Ms Pattie, if she was successful, "are not less than" $91,500. I add here that Mr Ghabar did not raise any argument against that. I respectfully regard that as a responsible and correct position to have taken.
2. Annexed to the affidavit of Mr Chipchase are medical reports. One is from a Dr Endrey-Walder, a general and trauma surgeon. Dr Endrey-Walder expressed the belief that Ms Pattie's "days of working on Operational Police Duties are over for good". He also thought that Ms Pattie's "capacity to perform sedentary work, clerical/administrative, is also restricted by her incapacity to maintain her neck in a fixed position". She would need ongoing analgesics and physio treatment and would need "a few hours help and assistance a week" in some of the heavier household-related chores.
3. Ms Pattie also saw a psychiatrist, Dr Lana Kossoff. That doctor reported that "Ms Pattie is suffering from a Major Depressive Disorder which has occurred in response to her inability to return back to work and her chronic symptoms of pain." Dr Kossoff acknowledged that Ms Pattie "is not keen to see a psychiatrist" but thought that some sessions would be of assistance and estimated a cost of about $350 per session for a psychiatrist or $220 per session for a psychologist. As a prognosis, Dr Kossoff regarded Ms Pattie's physical symptoms as "chronic" and was of the opinion that the "outcome of her psychological injury is closely linked to her physical ones". She was of the opinion that there was a whole person impairment of 16%.
4. To my mind, the expenses incurred for past treatment and likely to be incurred for future treatment, plus an allowance for domestic assistance, general damages, and loss in earning capacity is likely to exceed $91,500. Indeed, the test is lower as Mr Ghabar pointed out. Hoeben JA said in Eades v Gunestepe [2012] NSWCA 204 (at [45]) that the test was "whether there was a 'real and not remote chance or possibility'" of the damages reaching or exceeding that amount. I have no hesitation in reaching that conclusion.
5. For those reasons I propose to determine these motions in favour of the plaintiff, Ms Pattie. HIS HONOUR: Now, just so far as the form of orders which I should make? Well, you have both got notices of motion, Ms Baldwin, Ms Costa Mac. Ms Costa Mac, it seems to me that I should refuse the orders sought in your notice of motion and, Ms Baldwin, it seems to me that I should grant your client leave, nunc pro tunc, to commence proceedings under s 109(1) and your client filed the statement of claim April this year. 17 April, is that right? BALDWIN: Yes. HIS HONOUR: So what do you say about my proposal? I refuse the orders sought and then obviously defendant pays the plaintiff's costs. What do you both say? BALDWIN: I think it has been agreed that the costs could be costs in the cause. HIS HONOUR: All right. What about the proposed form of orders? Do you both agree with that? BALDWIN: Yes, your Honour. COSTA MAC: Yes, your Honour. HIS HONOUR: You do. Okay.

Orders

1. In respect of the notice of motion filed by the defendant on 23 May 2014 I refuse the orders sought in paras 1 and 2 of that notice of motion. The costs of the motion will be costs in the cause. In respect of the notice of motion filed on behalf of the plaintiff on 9 October 2014, I make the order sought in para 1 of that notice of motion and the costs of that motion will be costs in the cause. And I will just make a small amendment to the order in respect of the first motion.

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