Rahman v Al-Maharmeh

Court of Appeal (NSW)|2020-10-20|Before: Meagher JA, Leeming JA, Brereton JA

The judgment below

On 28 August 2019, the respondent filed a motion seeking to have the claim dismissed, on the basis that it had been commenced out of time without leave, and on 3 October 2019 the appellant filed a motion seeking leave under s 109 to commence the proceedings. The motions were heard together on 13 March 2020. In the course of the hearing, the primary judge rejected an application made, after the evidence had closed, to reopen the appellant's case to adduce oral evidence from Mr Ilic, on the basis of unfairness to the defendant arising from non-compliance with the rules regarding the filing and service of affidavit evidence.
In a judgment delivered on 20 April 2020, the primary judge dismissed the respondent's motion, with no order as to costs, it having been agreed that the matter would be determined on the appellant's leave application, upon which his Honour refused the appellant's application for leave under s 109(3), dismissed her motion with costs, and dismissed the proceedings with costs.
The primary judge found that no explanation was provided for what his Honour characterised as the 'critical period' from 7 January 2019 (when the solicitors' office reopened) to 15 February 2019 (when the appellant contacted her solicitors). Citing Walker v Howard ('Walker') [7] as authority for the proposition that "the acts and omissions of all relevant persons should be canvassed in the explanation to allow the Court to make an evaluation", his Honour said that there was a 'lacuna' in the evidence, arising from a lack of evidence from the appellant's solicitors. His Honour thus concluded that the appellant "failed to provide a full account of the conduct, including her actions, knowledge and belief (and those of her solicitor) from the date of the accident until the date providing the explanation". His Honour further found that the explanation was not satisfactory, as a reasonable person in the appellant's position would not have been justified in experiencing the same delay.
In addition, the primary judge found that the total damages of all kinds likely to be awarded to the appellant if her claim succeeded was less than $123,000 (being 25% of the maximum amount that may be awarded for non-economic loss), and thus that the requirement of s 109(3)(b) was also not satisfied.

Application to reopen to adduce oral evidence

As has been noted, in the course of the hearing, the primary judge rejected an application made on behalf of the appellant, during closing submissions, to reopen to adduce oral evidence from her solicitor Mr Ilic. His Honour rejected that application on the basis that it would be unfair to the respondent to allow it, in circumstances where the rules required that the evidence be on affidavit, filed and served in advance of the hearing. In the course of the later judgment, his Honour explained: "During the course of the hearing of the Notice of Motion, an application was made by the Plaintiff to call Mr Ilic to give evidence as to matters apparent from the solicitor's file. That application was opposed and dismissed. It was considered to be unfair to allow the Plaintiff's solicitor to adduce evidence on the run. This is contrary to the Court's procedure in relation to applications of this type, by way of Notice of Motion, which requires the filing and service of affidavit evidence in advance of the hearing. To grant such leave in the circumstances, would also offend the overriding purpose of the Court's rules, set out in s56 and following of the Civil Procedure Act 2005 NSW. The evidence was readily obtainable by reasonable diligence prior to the hearing of the Motion. No explanation was provided for why it was not adduced in proper form."
In contending that the primary judge erred in refusing the application to adduce evidence from Mr Ilic (appeal ground 4), the appellant submitted that his Honour made no findings as to how refusing the application would assist the 'just, quick, and cheap' resolution of the matter, and that allowing the evidence to be given may not have required an adjournment nor any additional costs; and that his Honour failed to advert to (NSW) Civil Procedure Act 2005 ('CPA'), s 58, which refers to the dictates of justice, arguing that, given that the only issue was quantum (duty, breach, and causation having been admitted), the appellant suffered significant injustice in being unable to adduce evidence relating to the delay. The respondent submitted that the decision to refuse the application was discretionary and that any appeal from it was confined by the principles referred to in House v The King. [8]
The application was made after both parties had closed their cases and in the course of submissions, in response to observations about the insufficiency of the evidence to provide a "full and satisfactory explanation". A party who comes to realise, in the course of closing submissions, that they may have failed to adduce sufficient relevant evidence on the obviously central issue of "full and satisfactory explanation" (as distinct, perhaps, from a deficiency on a merely formal matter due to oversight or inadvertence) cannot expect to be permitted to reopen to remedy the deficiency by adducing substantive evidence, particularly oral evidence of which no notice has been given in a case in which evidence is required to be on affidavit. No explanation for why such evidence had not earlier been adduced was offered. Moreover, there was no evidence of what Mr Ilic would have said had leave been granted; insofar as the proposed evidence was said to be of "matters apparent from the solicitor's file", it would appear to have been inadmissible secondary evidence of documents. Nor is it apparent how it could have assisted: in respect of what his Honour regarded as the critical period, between 14 December 2018 and 15 February 2019, Mr Ilic had already deposed: "I have not had an opportunity to discuss that matter with the previous solicitor who had the day-to-day carriage of this matter on behalf of the Plaintiff, and had left Prominent Lawyers prior to my commencing in February 2019, as to why the Statement of Claim had not been filed within the 2 month period after the CARS award was handed down". It may be that he could have illuminated the obscure references to 'miscommunication' between himself and Mr Bazouni after 28 February 2019, but the adequacy of the appellant's explanation in respect of this period was not in issue before his Honour.
Further, the ruling was a matter of practice and procedure relating to the conduct of the hearing. Even if not every judge would have made the same ruling, the primary judge's decision not to permit a reopening of the evidence, to adduce orally evidence which should have been on affidavit but of which no notice had been given, the relevance and admissibility of which was not apparent, in order to remedy a perceived insufficiency of evidence on the central substantive issue, at the heel of the hunt in the course of closing submissions, was well within the generous ambit of his Honour's discretion on a matter of practice and procedure.

Full and satisfactory explanation

The appellant contended that the primary judge erred in concluding that the appellant did not provide a full and satisfactory explanation for the delay (appeal ground 1), in finding that there was a lacuna in the evidence (ground 2), and in finding that the Court could not be satisfied that the appellant took appropriate steps to prosecute her case (ground 3).
Section 109 is relevantly as follows: 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. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority 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.
The requirements of a "full and satisfactory explanation" are elaborated in s 66, relevantly as follows: 66 Definitions (cf s 40 MAA) … (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.
In Karambelas v Zaknic (No 2), [9] Meagher JA, with whom Basten JA and Simpson J (as her Honour then was) agreed, summarised the requirements of a "full and satisfactory explanation" as follows (emphasis added): "[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."
As Allsop P wrote in Walker, [10] "Section 66(2) has two sentences. They should be read together as a composite whole intended to give content to the notion of a full and satisfactory explanation". Reading those sentences together, the content of a 'full' explanation is informed by its purpose, namely to enable a judgment as to whether the explanation is a 'satisfactory' one.
In this case, the necessity for an explanation arose from s 109(3)(a), which required "a full and satisfactory explanation to the court for the delay" (emphasis added). The relevant 'delay' was the period during which the appellant was late in commencing proceedings, being the period of four months from 14 or 15 February 2019 to 19 June 2019. Although her explanation, to be 'full', had to include a full account of her conduct, including her actions, knowledge and belief, from the date of the accident until the explanation was provided, it was her failure to commence proceedings by 14 or 15 February 2019 and thereafter until 19 June 2019 that had to be explained.
In substance, the appellant's explanation was that: 1. at all material times, she was aware of the deadline for the commencement of proceedings; 2. on 21 December 2018 (sufficiently before 14 or 15 February 2019 to allow time for her instructions to be implemented) she instructed a solicitor to commence proceedings; 3. for whatever reason, the solicitors failed to do so; 4. she followed up on 15 February 2019, and was told only that that a new solicitor now had carriage of the matter; 5. she followed up again on 26 February 2019 and arranged to see her solicitor on 4 March 2019; 6. in conference on 4 March 2019 she was told that the claim had not been filed in time, and she again gave instructions to commence proceedings; 7. by 4 April 2019, she was under the impression that proceedings had been commenced; 8. between 11 April 2019 and 30 May 2019 she pressed her solicitors for an update, culminating in a conference on 12 June 2019 with the principal, Mr Bouzani; and 9. for reasons which were not disclosed but were not attributable personally to her, as distinct from her solicitors, her instructions were not implemented until 19 June 2019, when the statement of claim was filed.
The respondent submitted that there were 'significant unexplained gaps' in the appellant's explanation, including in particular in respect of: 1. evidence from Mr Coxall, including when he left the firm and what he did before leaving, or any explanation as to why there was no evidence from him; 2. evidence from Mr Bazouni, or any explanation as to why he did not give evidence; 3. evidence as to what occurred between 14 December 2018 and 14 February 2019, or what occurred between 14 February 2019 and 19 June 2019; and 4. any understandable explanation for the delay in filing the statement of claim both before and after 14 February 2019.
The respondent further submitted that the primary judge was correct in finding that a reasonable person in the appellant's position would not have been justified in experiencing the same delay, because the appellant "clearly took a proactive interest in the matter, was aware of the various time limits, noted that she had been unable to confirm the filing of the statement of claim until after 7 January 2019 and then did not seek such confirmation until after the time to do so had expired". Therefore, "a reasonable person in her position would not simply have relied upon the solicitors but would have been aware of the delays because of her proactive interest in the matter and taken greater and earlier steps to ensure her solicitors had filed the statement of claim within time".
As has been noted, to satisfy the requirement for a 'full' explanation, the appellant had to provide a full account of her conduct, including her actions, knowledge and belief, from the date of the accident until the date of providing the explanation, but focussing on why she did not commence proceedings by 14 or 15 February 2019 and thereafter until 19 June 2019. No issue was raised concerning the adequacy of her explanation up to 14 December 2018. Thereafter, the appellant's explanation was to the effect that she was aware of the time limit; she gave timely instructions to commence proceedings and relied on her solicitors to act on them; when she was informed that proceedings had not been commenced in time, she again gave instructions to commence them; she was under the impression that they had been commenced by early April (an assumption that many clients who had instructed solicitors in those circumstances might make); and thereafter, when unable to obtain a satisfactory account, she pursued the solicitors, repeatedly, to the point of insisting on a conference with the principal of the firm. In substance, she knew the relevant time limit, she gave the requisite instructions in a timely manner, she believed that her solicitors would implement them, and she did not know why they did not. The appellant's explanation thus included her relevant actions, conduct and belief from the date of the accident until it was provided in her affidavits. There was no more for her to say as to her own actions, knowledge and belief.
It must be regarded as settled that the "full account of the conduct" referred to in the first sentence of s 66(2) is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay. [11] However, this does not mean that the explanation is required to include "the actions, knowledge and belief" of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant's delay in commencing proceedings. In Walker, [12] Allsop P said: "[55] The claimant is responsible for providing the explanation: s 109(3)(a). If, as here, he or she is mentally incapacitated, that practical responsibility will fall to his or her tutor on his or her behalf. That the explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, does not broaden the meaning of "claimant" in s 66(2) to "the person who makes or is entitled to make the claim and any person acting or purporting to act on his or her behalf." No warrant appears in the text or structure of the MAC Act or these provisions for this interpretation. [56] Thus, the phrase "including the actions, knowledge and belief of the claimant" should not be read as "including the actions, knowledge and belief of the claimant and any person acting or purporting to act on his or her behalf."
The gravamen of the primary judgment, which is reflected in the respondents' submissions in this Court, was that the explanation did not include evidence from the solicitors explaining why her instructions had not been acted upon in a timely manner. In particular, there was no evidence from Mr Coxall (who presumably had the conduct of the matter from December 2018 until he left the firm), or Mr Bazouni (the principal, who was a party to the 'miscommunication'). Nor did the evidence descend to explain in any sensible way what was the 'miscommunication'.
There is no doubt that in this respect, the explanation could have been fuller than it was. In particular, it could have explained why the solicitors apparently did nothing, and what was the 'miscommunication' between Mr Ilic and Mr Bazouni. However, the evidence of the appellant and Mr Ilic did provide an account of the conduct of the solicitors, to the extent that it appeared that though instructed to commence proceedings, they did nothing until after Mr Coxall had left without drafting a statement of claim; they did nothing until the appellant contacted them on 15 February; Mr Ilic reviewed the file on 26 February and drafted a statement of claim on 28 February and forwarded it to Mr Bazouni after the 4 March conference; and thereafter, despite persistent inquiries by the appellant, they appear to have done nothing until June. What the explanation did not include was an explanation as to why the solicitors failed to implement the appellant's instructions and did nothing. However, that was not a matter within the control or knowledge of the appellant personally, as distinct from her solicitors, and while her account of the conduct for the relevant period was required to cover the relevant conduct of her solicitors, that requirement did not extend to including "the actions, knowledge and belief" of the solicitors.
It is not apparent how evidence explaining why the solicitors failed to implement the appellant's instructions would have affected the adequacy of her explanation. Hypothetically, the solicitors might have explained that their failure to act was due to one or more of the following, in decreasing order of likelihood: (1) the departure of Mr Coxall and inadvertence by his successor until the appellant followed up; (2) neglect; (3) incompetence; (4) frustration by technological or other problems; and (5) wilful default. Whichever of those it was, which was and apparently remained unknown to the appellant herself, would have made no difference to the adequacy of the appellant's explanation for the purpose of judging whether in those circumstances others in her position would be justified in experiencing the same delay, because every one of them was beyond the appellant's personal control and provided an explanation for her delay. The explanation was sufficiently full to enable an assessment to be made of whether it was satisfactory. A more elaborate explanation of why the solicitors failed to act would not have contributed to an evaluation of whether or not the appellant's explanation was a satisfactory one.
As to the test of a 'satisfactory' explanation, it suffices that some reasonable persons in the claimant's position would have experienced the same delay as the claimant. [13] As Meagher JA explained in Hunter v Roberts: [14] "The relevant test directs attention to whether a hypothetical reasonable person "in the [applicant's] position" would have experienced the same delay. Here that delay was a period of 4 months and 14 days from 28 September 2013. As Hodgson JA (dissenting in the result) emphasised in Russo v Aiello [2001] NSWCA 306 at [17] there is "a substantial spectrum of reasonableness" and accordingly "it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay". The test does not require a claimant to establish that all "reasonable" persons within that spectrum would have experienced the same delay."
In short, the appellant gave timely instructions, and relied on her solicitors to implement them. She followed up to check, and when she discovered the delay, she again instructed them to act and relied on them to do so. When they failed to respond, she pursued them, quite diligently, until eventually the solicitors did, albeit belatedly, as she had instructed. It is true that she did not follow up with the solicitors before the limitation period expired on 14 or 15 February 2019. However, a solicitor's client is entitled to expect that the solicitor will act with reasonable diligence without reminders to do so, and in my judgment, many persons in the appellant's position, having given instructions to commence proceedings, would have assumed that their solicitors would implement them in a timely manner and would rely on them to do so, and would not check to ensure that they had done so. Many in her position, having given instructions on 21 December 2018, would not have followed up prior to the expiration of the limitation period on 14 or 15 February 2019. Many, exposed to solicitors who, for whatever reason, acted - or failed to act - as hers did, would have experienced the same delay as did she.
The appellant's explanation was, therefore, full and satisfactory. The primary judge was in error in concluding otherwise.

Likely damages in excess of threshold

It will be recalled that s 109(3)(b) provides that leave must not be granted unless 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 s 134 as at the date of the relevant motor accident; and that the maximum amount fixed under s 134 as at the relevant date was $492,000, [15] so that 25% thereof was $123,000.
Section 109(3)(b) requires the Court to assume that the claim succeeds on liability, and to predict whether the total damages of all kinds likely to be awarded will exceed the threshold. This is a predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material, [16] in which the question is whether there is "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent", that the total damages will exceed the relevant threshold. In relation to a predecessor provision in similar terms ((NSW) Motor Accidents Act 1988, s 43A), Mason P said, in Harika v Tupaea: [17] "[25] An application under s43A(7) must proceed on evidence (Aiello at [13]). But it is not the trial of the claim and it is relevant that the parties fought this particular application without cross-examining any of the witnesses. When parties join issue on the basis of tendering medical reports that take a range of positions, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence. [26] What is required by the words "likely to be awarded"? [27] The word "likely" must be construed in context. It does not always require proof or persuasion to a probability greater than 50% (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-7, Jungarrayi v Olney (1992) 34 FLR 496). The present case involves an interlocutory application in which summary dismissal of a presumptively valid claim is sought. The court is involved in a predictive exercise. In analogous contexts, judges have favoured the broader sense of "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent" that Deane J adopted in Tillmanns (see Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett (1998) 82 FCR 524, Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Smith v Western Australia (2001) 108 FCR 442). That is the approach to be adopted here."
This approach was applied to s 109(3)(b) in Sinclair v Darwich, [18] in Eades v Gunestepe, [19] and in Dijakovic v Perez. [20] In the latter decision, Gleeson JA, with whom Leeming JA and McCallum JA agreed, said (at [109]): "The primary judge was required under s 109(3)(b) to assess the likely result of damages if the claim succeeds. This involved a predictive exercise. It is well established that the term "likely" in s 109(3)(b) means a "real chance" or a "real prospect": Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166 at [36]; Eades v Gunestepe at [10]. As Basten JA explained in Eades v Gunestepe at [10], the relevant shade of meaning of "likely" in the present context is conveyed by "the notion of a substantial, as distinct from a remote chance": Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 389 (Mason CJ)."
Later, his Honour said: "[117] There are two difficulties with her Honour's approach. The first is that it ignores that satisfaction of the condition in s 109(3)(b) is based on a preliminary enquiry involving a cursory assessment of available material: Eades v Gunestepe at [8] (Basten JA). [118] The other difficulty is that her Honour's attention was not drawn to relevant authority in this Court which has considered how conflicting medical evidence should be approached on such an application. Those authorities emphasise that an application for leave under s 109 is not the trial of the claim. Where the parties join issue on the basis of tendering medical reports that take a range of positions, without cross-examining any of the witnesses, "the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence": Harika v Tupaea at [25] (Mason P). [119] Although the observation of Mason P in Harika v Tupaea related to a different section, that is s 43A(7) of the Motor Accidents Act, that section used the same formula of words "likely to be awarded" as is used in s 109(3)(b). Further, as Hoeben JA observed in Eades v Gunestepe at [48], s 43A(7) performed a similar, but not identical, function to that of s 109(3)(b). [120] In this Court, counsel for Mr Perez accepted that her Honour should have approached the threshold issue by reference to the claimant's medical evidence, taken at its highest (tcpt, CA at 31, lines 37-46). On this basis, counsel accepted that the report of Dr Conrad of April 2014 concerning Mr Dijakovic's work capacity, together with evidence of his earning capacity based on his wage as at the end of 2012, would have been sufficient to satisfy the threshold of likely damages (tcpt, CA at 33, line 32-36). That concession was properly made." Leeming JA separately referred to "the respondent's concession, properly made, as to taking the applicant's case at its highest". [21] However, that was in the context of the evidence in the particular case, and I am disinclined to accept that the Court must always take a claimant's case on damages at its highest, nor assume that the claimant will succeed on every head of damage claimed. [22] The reference to the claim being successful is a reference to the determination of liability. Once that is assumed in a plaintiff's favour, the Court is required to predict whether the damages likely to be recovered will exceed the threshold. If the Court, assuming that the claim succeeds, is nonetheless of the view that the claimant is not likely to recover a particular head of damages, it is not required to assume the contrary. The test is not what may possibly be awarded, but whether the threshold is likely (in the sense to which I have referred) to be exceeded. As Mason P explained in the passage cited above, where issue is joined on the basis of medical reports that take a range of positions, in the absence of cross-examination, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports arguably favourable to the insurer but contradicted by the claimant's medical evidence. That does not mean that the claimant's case must always be taken at its highest.
However, the evidence upon which the predictive exercise is undertaken will, at least ordinarily, be less complete than that which would be required at a trial. Indeed, evidence which would not be probative or even admissible at trial might well be relevant and admissible to establish what is likely to be awarded at trial. Such a conclusion may be reached on evidence which would not be admissible at trial. The position is analogous to that which obtains under (NSW) Limitation Act 1969, s 58(2)(b), the effect of which is that one of the prerequisites for an extension of the limitation period is that "it appears to the Court that … there is evidence to establish the cause of action". In that context, it has been accepted that a claimant does not need to produce the actual evidence that would be adduced at the trial, and that the material showing that there was evidence to establish the cause of action does not itself need to be in admissible form, but can be adduced by way of hearsay. A claimant has to show only that evidence to establish its cause of action existed, and that it was available to be adduced at trial. [23] Likewise, in the present context, a claimant does not have to adduce evidence proving his or her damages claim, nor evidence that would be admissible at trial, but only such evidence as shows that when it comes to trial, the damages awarded are likely to exceed the threshold.
In the present case, the primary judge noted that on medical assessment, the appellant failed to achieve the threshold of 10% whole person impairment, and so would not be entitled to any award for non-economic loss. Her claim comprised: 1. past out-of-pocket expenses, which had been allowed by the CARS assessor at $8,082.35; 2. future out-of-pocket expenses, which were quantified at approximately $25,000; 3. past gratuitous domestic assistance. His Honour observed that the appellant failed to clear the threshold of six hours per week over six months and so was disentitled to any damages for past domestic assistance. [24] As will appear, this observation was incorrect, but it was of no consequence because his Honour nonetheless allowed $30,480 which the respondent had conceded was the most favourable view of the appellant's claim; and 4. future domestic assistance. His Honour said that he had difficulty in accepting that the appellant had an ongoing need for 3.5 hours domestic assistance per week, which in any event that did not meet the threshold for gratuitous assistance, so that unless such assistance would be provided commercially, rather than by the plaintiff's children or others on a gratuitous basis, the claim for future care would fail. His Honour allowed lawn mowing at $30 per week, capitalised to $26,550, but otherwise found that that there was no reason to suppose that the appellant would not continue to rely on gratuitous assistance from her children, rather than pay for it on a commercial basis, and accordingly concluded that it was not likely that the appellant would be awarded anything for future domestic assistance.
No issue was taken in this Court about the components in (1), (2) and (3) above, which total $63,000. The essential issue was therefore whether the appellant was likely, in the relevant sense, to be awarded more than $60,000 for future domestic assistance. On that issue, the relevant evidence comprised: 1. statement of the appellant dated 30 November 2017; 2. statement of the appellant's son, Mohammed Boustani, also dated 30 November 2017; 3. report of Susie Mullen, occupational therapist, dated 28 January 2020, tendered for the appellant; and 4. medical evidence tendered by the respondent.
The appellant's statement included the following: "11. The motor vehicle accident didn't just have physical affects but also psychological effects. I feel that after the accident my life has never been the same. 12. All my social interactions with my family and friends began to reduce as I developed a depressed mood, no motivation to teach or perform other tasks of day-to-day life, and lost interest in socialising with others. 13. I found that my ability to concentrate on tasks such as reading has been impacted and has decreased since the accident occurred. 14. Furthermore, I lost interest in maintaining personal hygiene and self-care to both myself and my children that are living at home with me. … 17. Now my 19 year old son assists me in my cooking and cleaning duties, among other tasks, and have less interest to care for my 5 year old daughter. 18. I only attend the local prayer room once a week and cannot read for longer than 30 minutes because I begin to experience headaches and lose concentration."
In Mr Boustani's statement (which, contrary to the primary judge's observation that it was unsigned and undated, was signed and dated 30 November 2017), he said that before the accident his mother was completely capable of doing all her own household tasks by herself, but that after the accident her life was affected both mentally and physically. He continued: "6. I realised that after the accident my mother lost motivation in doing the day to day tasks of cleaning the house and cooking, among others."
He said that he had previously hired a cleaner for, on average, $100 per week, to sweep the floor, wipe the floor tiles, tidy and clean the lounge room, clean the bathroom, wash the clothes and hang out the laundry, and wash the dishes. He said that he spent at least twenty hours per week with his mother, and previously approximately double that time assisting her, especially immediately after the accident. He continued: "9. I always cook for my mother or alternatively bring her takeaway food when I am unable to cook for her. I always check up to see that my mother has food."
Both statements were admitted after formal but unelaborated objection. Neither the appellant nor Mr Boustani was required for cross-examination, counsel for the respondent stating to the primary judge: [25] "I am happy for your Honour to read both statements and you will then see a very clear reason why I don't want to ask any questions of either witness."
Ms Mullen had assessed the appellant on 16 January 2020. She reported that in the appellant's current performance in activities of daily living, she described "constant high levels of pain at the left side and her head and entire left body side", demonstrated by grimacing, sighing, closing her eyes, heavy breathing, and supporting her lower back with her hands when standing; bending forwards and reaching floor level was restricted and all neck movements and reaching overhead were painful. "Pain and physical limitations have impacted her ability to complete ADLs" (activities of daily living); she requested a seated rest break after fifteen minutes of demonstrating ADLs in her home; and she would attempt a task but stop after a few seconds, worried her pain would be aggravated when demonstrating bedmaking, dishwashing and sweeping. The appellant's home and yards were unkept, and it appeared that she and her adult children were struggling to maintain it. However, she was completing her personal care independently, except for hair washing, was attending a hairdresser, and was driving locally. She was completing minimal domestic tasks, such as light meals and shopping for a few items. Her daughters were assisting with all other domestic tasks, and she had paid for cleaners in the past, although she had ceased this at the end of 2017: "As all of her 5 adult children had moved out by the end of 2017 and Ms Rahman stopped the cleaner as she was unable to continue to afford this."
Ms Mullen assessed past gratuitous care in three phases. The first was the period 30 November 2014 through to 30 March 2015, during which the appellant independently managed most of her personal care, with her daughters providing massage to her back and neck for five minutes daily, and her family assisting with shopping and some cleaning and laundry; she commenced paying for lawn mowing. Ms Mullen estimated that the appellant received gratuitous assistance for 7.83 hours per week: 0.58 hours of massages for pain, and 7.25 hours of housework, while also paying for lawnmowing. The second phase was the period 31 March 2015 through 31 January 2018, during which Ms Mullen estimated that the appellant received gratuitous assistance for 6.08 hours per week: 0.58 hours of massages for pain, and 5.5 hours of housework, while paying not only for lawnmowing but also for a cleaner for three hours per fortnight. The third phase was the period 1 February 2018 through 16 January 2020, during which Ms Mullen estimated that the appellant received gratuitous assistance for 4.83 hours per week.
Although his Honour said that "[s]ince 31 March 2015, the Plaintiff fell below the weekly threshold for damages for gratuitous domestic assistance and also below the 6 month threshold for any damages for domestic assistance at all", this misread Ms Mullen's report, as his Honour appears to have overlooked the 0.58 hours per week for massaging painful areas which were included in Ms Mullen's totals, on which the appellant exceeded six hours per week from 30 November 2014 until 31 January 2018, self-evidently a period of well in excess of six months. However, as his Honour nevertheless allowed past domestic assistance as conceded by the respondent, this error did not affect the outcome.
As to future assistance, Ms Mullen considered that the appellant's needs comprised commercial hairdressing services at a cost of $40 per week "until pain management services commence e.g.: 6 months"; and commercial domestic and gardening assistance for 3.5 hours per week, costed at $40 per hour x 3 hours for domestic tasks, and $60 per hour x 0.5 hours per week for gardening. The domestic and gardening assistance for 3.5 hours per week comprised kitchen and cleaning (0.5 hours); vacuuming and mopping floors (1 hour); cleaning bathrooms (0.25 hours); changing bed linen on two beds weekly and tidying bedrooms (0.5 hours); laundry (0.5 hours); spring cleaning (0.25 hours); and lawn mowing and gardening (0.5 hours).
As the total recommended future care and assistance was for 3.5 hours per week, which is below the threshold for compensable gratuitous care (six hours per week), the appellant would recover damages under this head only if the assistance would be provided commercially, rather than by her children or others on a gratuitous basis.
His Honour described the respondent's medical evidence as considerably undermining the appellant's claim, "finding 0% whole person impairment and generally no injuries attributable to the accident", but proceeded on the basis that "[c]onsistent with the obligation to take the Plaintiff's case at its highest, I have put those opinions to one side and will not have regard to them in the course of determining the most likely damages". While, for the reasons I have outlined above, this may have been favourable to the appellant, no complaint was made about it in the context of this case.
His Honour nonetheless proceeded to conclude that "even taking the case for the Plaintiff at its highest, it seems likely that little or no damages would be allowed for future domestic assistance". However, his Honour did not dispose of the matter on the basis of that conclusion, but put to one side the quantification of future domestic assistance and resolved the issue on the basis that there was no reason to suppose that the appellant would not continue to rely on gratuitous assistance from her children, rather than pay for a commercial carer for three hours per week.
I do not accept the respondent's submission that this was a discretionary judgment such as to attract the principles in House v The King. [26] While there is room for argument that there may be a discretion to refuse leave under s 109 even if the conditions are satisfied, to which those principles might apply, a decision whether or not the condition is satisfied does not involve an exercise of a discretion.
Nor do I accept the appellant's submission that his Honour erred by failing to take the appellant's case at its highest and to assume that her claim would be 'totally successful' in respect of every head of damages. For reasons already explained, I do not accept that a judge hearing such an application is obliged to proceed on the basis that the claim would be 'totally successful' in respect of every head of damages.
However, for the reasons that follow, I do accept that his Honour erred in finding that the total damages of all kinds likely to be awarded to the appellant was less than the $123,000 threshold.
First, his Honour's conclusion that "even taking the case for the Plaintiff at its highest, it seems likely that little or no damages would be allowed for future domestic assistance" was informed by a number of reservations about the evidence relied upon by the appellant which on a hearing of this kind do not warrant it, especially in the absence of cross-examination. In particular, in respect of the appellant's statement, his Honour questioned whether a 'loss of interest' ought to result in a finding of need. His Honour found Mr Boustani's statement unhelpful, including because the time to which it referred could not be ascertained without a date, and it was also said to be unsigned; as has been noted, this was incorrect. His Honour also questioned whether "loss of motivation" was a proper basis to find need. Finally, his Honour drew attention to apparent inconsistencies between Ms Mullen's account that the appellant's daughters were assisting with domestic tasks, whereas the appellant and Mr Boustani had said that he was doing so; and that the appellant had paid for cleaners in the past, whereas Mr Boustani stated that it was he who paid for cleaners.
As has been noted, neither the appellant nor Mr Boustani, though available, was cross-examined. (His Honour also commented that Mr Boustani did not give evidence; however, he was offered but not required for cross-examination by audio link). There were clearly potential explanations for these matters which might have emerged had they been raised. First, while the statements referred to a loss of interest or of motivation to perform ADLs, when read in the context of Ms Mullen's report it is clear that that was associated with physical consequences of performing them, namely pain, as well as a psychological state. Secondly, as has been noted, Mr Boustani's statement was not unsigned and undated, but dated 30 November 2017, whereas Ms Mullen assessed the appellant in January 2020; the apparent inconsistency as to who was assisting the appellant is readily explicable by the different timeframes to which they referred. Thirdly, whether the money to pay the cleaner came out of the appellant's pocket or her son's pocket is hardly material and could easily have been a matter of expression as to who the cleaner was working for as distinct from who funded the payment. In the absence of cross-examination, on an application of this kind, those issues should not have significantly undermined the evidence on which the appellant relied.
Secondly, his Honour found Ms Mullen's opinion (that the appellant reasonably required commercial domestic and gardening assistance for 3.5 hours per week) "difficult to accept", observing that it was "largely qualified by the suggestion that the plaintiff's capacity for domestic assistance would improve after she received pain management services", the cost of which was allowed in future out-of-pocket expenses, and that "it seems probable that Ms Mullen's opinion would be that any needs will decrease over time 'using pacing and resting'". It is true, as his Honour observed, that Ms Mullen's recommendations were prefaced by the statement that "[a]ttendance with a pain specialist and multi-disciplinary pain management programme, as recommended in section 6, would increase her contribution to light domestic tasks using pacing and resting to manage pain with limits". However, while Ms Mullen expressly limited the requirement for commercial hairdressing services on that basis, it does not apparently qualify the other parts of her recommendation, as appears from the fact that Ms Mullen's opinion takes into account her observations that: 1. the appellant was managing meal preparation, making simple meals such as sandwiches, heating frozen foods, and buying takeaways such as kebabs, pizzas and pides, and (according to Ms Mullen) had the time during the day to pace out cooking dinners by doing some preparation and then resting and repeating this; 2. although the appellant told Ms Mullen that she was not doing any kitchen cleaning, Ms Mullen suggested that she would be capable of washing dishes, using pacing and resting to manage her condition; 3. due to pain and difficulty reaching low levels, the appellant would require commercial assistance for a thorough kitchen clean, for 0.5 hours per week; 4. the appellant could wipe over the basin and should continue doing this, but would require assistance for bath, shower and toilet cleaning for 0.25 hours, using a toilet cleaning agent between cleaner visits; 5. the appellant was able to partially make her bed and could have completed the task by straightening her quilt over the bed with pacing and resting, but would require commercial assistance to change bed linen on two beds for 0.5 hours per week; 6. the appellant could partially load the washing machine, and with pacing and resting could have completed this and put on a load of laundry, and could utilise clothes airers to hang out small items, but would continue to require assistance with heavier items, for 0.5 hours per week; 7. the appellant was and would continue to be capable of shopping for small amounts of groceries as needed; 8. spring cleaning and outdoor cleaning had been neglected and commercial assistance for 0.25 hours per week was recommended; and 9. the appellant had paid for lawnmowing and gardening since the accident and this was recommended at 0.5 hours per week.
Again, Ms Mullen was not cross-examined; in those circumstances, it could not be assumed that the beneficial effects of pain management had not already been taken into account. In my view, therefore, his Honour's conclusion that "even taking the case for the Plaintiff at its highest, it seems likely that little or no damages would be allowed for future domestic assistance", was flawed, and it was not unlikely that at trial she would have been able to establish a need for assistance in the order of that assessed by Ms Mullen; having regard to her statement, her son's statement, and Ms Mullen's report, there remained a 'real chance' that she would do so. Moreover, even if the appellant's capacity might improve after pain management services, so that her needs might decrease over time, at the very least there was a 'real chance' that she would continue to require in excess of 1.5 hours per week of domestic assistance (Ms Mullens recommended 3.5 hours, but for reasons that will appear 1.5 hours would suffice to clear the threshold), and 0.5 hours of mowing and gardening (which was uncontroversial).
Thirdly, the basis of his Honour's decision was that there was no reason to suppose that the appellant would not continue to rely on gratuitous assistance from her children, rather than pay for a commercial carer for three hours per week. In particular, his Honour referred to the absence of any evidence that the appellant would seek out commercial services, rather than rely on gratuitous assistance. His Honour referred to observations in Miller v Galderisi ('Miller') [27] to the effect that there was no reason to suppose that the claimant's wife would not continue to be able and willing to assist him for many years to come. In that case the Court, having held that the award made by the primary judge for damages for commercial domestic assistance, upon the assumption that he required commercial domestic assistance immediately and would continue to do so for the rest of his life, could not be justified in circumstances where the evidence indicated that such domestic assistance as he needed was being provided by his wife, and to a limited extent by his adult son who lived with him, and where there was no evidence that this gratuitous assistance would cease at some time in the future, proceeded to make its own assessment. In this respect, the Court observed that there was no reason in principle why, if the evidence justified it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases: "[18] There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases. Such an award of damages was, for example, made in Nominal Defendant v Lane [2004] NSWCA 405. Giles JA (with whom Ipp and Tobias JJA agreed) said in that case: "[75] …. It was for his Honour to find what was likely to occur after the respondent's mother reached 65. He was evidently not satisfied that the respondent would be cared for, in an appropriate manner, by some combination of other family members and the townsfolk; hence he made allowance for professional care. It was well open to his Honour to take that view. The judge was looking ten years and more ahead. The respondent's sister and brother, and no doubt the cousins, had their own lives, and with due regard to familial and cultural responsibilities in my view it was open to the judge to think it unrealistic to assess damages on the basis that, when the respondent's mother was unable properly to do so, the respondent would receive the requisite care from other family members. Nor could the townsfolk be expected to contribute in any significant way to the requisite care"."
The Court acknowledged that notwithstanding that domestic assistance had been provided gratuitously to date, the possibility that circumstances might change in the future could be taken into account: "[19] The evidence accepted by the primary judge at the additional domestic assistance required as a result of the accident, assessed at four hours per week, was, since the accident and at the time of trial, being provided by the respondent's wife, with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If that circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency."
Four relevant variables were identified as having that contrary tendency, in the particular circumstances of that case. Three of them related to the condition of the claimant: first, the significant possibility, given his medical history, that the claimant would not survive until his statistical life expectancy; secondly, the significant possibility that further ill health would overwhelm the needs created by the accident; and thirdly, the possibility that age alone would create a similar need for domestic assistance, in later years, to that created by the accident. The fourth was the apparent unlikelihood of the gratuitous assistance ceasing to be available: "[21] The fourth factor concerns the ability and willingness of family members to provide assistance. The primary carer was the respondent's wife. At the date of trial, she was 51 years of age. She was sufficiently fit and healthy to be providing the assistance he required at that time and, indeed, was in receipt of a carer's pension for that purpose. Undoubtedly age will weary her, but, apart from the usual contingencies, there was no reason to suppose that she would not continue to be able and willing to assist him for many years to come. Similarly, there was no evidence of likely inability on the part of the son, although he might relocate to an area too distant from his parents' home to permit him to provide regular assistance. However, his assistance was largely with lawn mowing and constituted a small part of the domestic assistance required. The likelihood that he would not be in a position to visit his parents on a sufficiently frequent basis to help in that regard was a contingency which should be taken into account, but was far from a certainty, both as to the event and its timing."
The Court observed that the question was whether the damage which had occurred would result in a compensable loss at some future time, taking into account the above 'variables', and that while the possibility of such a loss was perhaps not entirely fanciful, the chance of it occurring was slight. The Court continued: "[24] In awarding damages for loss of earning capacity, allowance is routinely made for contingencies or vicissitudes which may, absent the tortious injury, have caused loss in any event. Conventionally, a figure of 15% is allowed for such contingencies: see State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [31]-[33] (Mason P) and the authorities referred to, including Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497-498 (Dawson, Toohey, Gaudron and Gummow JJ). There is no conventional allowance for the provision of domestic assistance on a commercial basis at some future point in time, against the possibility that the gratuitous carer may no longer be able or willing to provide such care. If any such convention were to be adopted, it would, as with vicissitudes, require the plaintiff's particular circumstances to be taken into account. The respondent's circumstances in this case militate against any such allowance. Accordingly, it is not appropriate in this case to simply pluck a figure out of the air because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future."
Thus the question was what if any allowance should be made for the possibility that at some future point in time, the gratuitous carer may no longer be able or willing to provide such care. The claimant's circumstances in that case - including, amongst other variables, that there was no reason to suppose that his wife would not continue to be able and willing to assist him for many years to come - militated against any such allowance.
In Gordon v Truong ('Gordon'), [28] it was held by majority (Macfarlan JA and Simpson J) that the primary judge had erred in largely rejecting a claim for damages in respect of future domestic assistance, notwithstanding the absence of evidence that commercial assistance would replace the domestic assistance which had been provided gratuitously to date. Simpson J pointed out that the primary judge's decision was based on an unstated assumption that the services would continue to be provided gratuitously, and that Miller was a case decided on its own facts: "[125] The primary judge considered himself bound by the decision in Miller to decline to make an award for future services. His decision was based upon an unstated assumption of fact. The unstated assumption was that the services would continue to be provided, as they had been in the past, on the basis that the plaintiff was not liable to pay for them. [126] That assumption was, in my opinion, unwarranted. The probabilities are that both of the able-bodied sons, Tony and David, will, in due course, move out of the plaintiff's home and establish their own homes. It cannot be assumed that they will be in a position to devote the time that they have to date to the care of the plaintiff. Indeed, the evidence was that, prior to the plaintiff's injury, they had done little by way of domestic work. [127] Moreover, the probabilities are that Ms Pham will elect to return to her part-time employment, which she gave up only because of the need to care for the plaintiff. If Ms Pham does return to her employment, it will be necessary to replace her contribution to the plaintiff's care with paid services. [128] Despite a reference by the primary judge to "the very clear statements of general principle" made by this Court in Miller, that was a case decided on its own facts. The primary judge in this case considered that the facts in Miller bore "an uncanny resemblance" to the facts in the present case."
Her Honour proceed to explain: "[130] Notwithstanding an apparent correspondence of facts, there is a very significant point of differentiation between the facts of Miller and the facts of the present case. In Miller, the plaintiff's wife was in receipt of a carer's pension, granted for the very purpose of enabling her to provide care to the plaintiff. Although it was not given as a reason in this Court, it seems to me that, to award damages to enable the plaintiff to pay for assistance at commercial rates, while his wife continued to receive a pension for that very purpose, would amount to unjust enrichment, and be contrary to principle. In fact, it is difficult to say that the services in Miller were being rendered gratuitously. They were being paid for, although not by the plaintiff, and the plaintiff was not liable to pay for them. The implicit finding of this Court was that the assistance would continue to be rendered, and it would continue to be paid from resources other than those of the plaintiff. In the terms of s 141B, therefore, they were services for which the plaintiff would not be liable to pay. In the circumstance that the plaintiff's wife was in receipt of a carer's pension for the very purpose of providing the services it was an inevitable conclusion that the services would continue to be rendered on the basis that the plaintiff would not be liable to pay for them. [131] In this case, Ms Pham was also in receipt of a carer's pension, but well before the plaintiff's injury. That pension had nothing to do with the plaintiff's injury. Unlike in Miller, services rendered by Ms Pham to the plaintiff, additional to those she rendered pre-injury, were rendered gratuitously. There is not the same basis for a finding - or an assumption - that Ms Pham will continue to render the services gratuitously, once the plaintiff has funds."
Her Honour explained that whether, in future, services would be provided on a gratuitous or commercial basis, was a predictive exercise, and that at least in the absence of direct evidence on the point, a judge is required to draw inferences, as may this Court on appeal: "[132] An underlying fact in relation to s 141B is whether, in future, services will be provided on a basis that does not expose the plaintiff to a liability to pay. That is a predictive exercise. In this case, there was no direct evidence that Ms Pham would continue to look after the plaintiff on the same basis as she had done in the past. The judge was required to draw inferences from the evidence (as does this Court). [133] There was no evidence of the plaintiff's pre-injury financial position, or that of Ms Pham, other than that the plaintiff was in receipt of a disability pension, and Ms Pham in receipt of a carer's pension. From that, it may be inferred that it was (financial) necessity that resulted in Ms Pham providing the services that she did without payment. Following the award of damages to the plaintiff, necessity will not dictate the provision of services without payment. It may be inferred that Ms Pham will return to work, and the plaintiff will be obliged to pay for additional services. That he has a fund available to him should not disentitle him to an award of damages for that purpose. The damages he was awarded for compensation under other heads should not be depleted in order to permit him to receive the care to which he is entitled. [134] It was an error for the primary judge to conclude that Miller obliged him to decline to make an award. Having found that the plaintiff was in need of domestic assistance for between 2 to 4 hours per week, it was necessary for the judge to consider on what basis those services would be provided. That is a finding of fact that was not made. The evidence in that respect was scanty. Neither counsel made any attempt to explore the willingness of Ms Pham or Tony or David to continue to do what they were doing, nor their likely capacity to do so. That finding must be made, as best it can, by inference from the evidence that was given. Section 75A of the Supreme Court Act 1970 (NSW) permits this Court to draw the necessary inferences, provided the evidence is available. I would draw the inferences set out above - that Tony and David will cease the provision of their gratuitous services, and that Ms Pham will return to work and do likewise."
Macfarlan JA agreed: "[51] I agree with Simpson J's conclusion that the primary judge erred in largely rejecting the plaintiff's claim for damages in respect of future domestic assistance. In Miller v Galderisi [2009] NSWCA 353, this Court concluded that the evidence did no more than establish that there was "a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future" (at [24]). As Simpson J concludes, inferences should however be drawn in the present case "that Tony and David will cease the provision of their gratuitous services, and that Ms Pham will return to work and do likewise" (see [133]). Thus the plaintiff in this case is likely to need and obtain commercial domestic assistance in the future if an award is made under this head. The appellant accepted that if the evidence justified this conclusion, the plaintiff was entitled to recover under this head notwithstanding the stated contingency (that is, an award of damages under this head being made)."
Basten JA's view that where domestic assistance is being provided gratuitously and there is an absence of evidence that such assistance would cease either immediately or at some time in the future, it would be inconsistent with principle to make an award for commercial domestic assistance to commence immediately, was in dissent. [29] In any event, it does not deny that an award may be made on Malec v Hutton principles [30] on the basis of a chance that commercial care may be required in the future. Moreover, it speaks to the situation at trial, not on a preliminary assessment of the kind required by s 109(3)(b).
In Sampco Pty Ltd v Wurth ('Sampco'), [31] Basten JA, with whom Meagher JA and Adamson J agreed, said (citations omitted): "[102] The present case was not run on the basis that, due to some change in circumstances, gratuitous assistance might cease and commercial assistance might be required. Accordingly, the present case did not involve speculation as to future events in foreseeable but unpredictable circumstances. Rather, it depended upon an expressed preference of the plaintiff to have services provided commercially. [103] In the absence of any precise evidence as to the heavier domestic work which required assistance as a result of the injury to the foot, it is not established that the plaintiff required more than three or four hours domestic assistance from her husband. Given his willingness to provide that assistance in the past, it was not unreasonable to expect that it would continue in the future. [104] The sum total of the plaintiff's evidence in this regard appears to have been the following, led from her by her counsel: "Q. You know that part of your case involves a claim for some money to get somebody in to do these heavier chores inside the house? A. Yes. Q. How would you feel about that, paying somebody to come in and do the heavier chores? A. That would be, make life much, our marriage life much better." [105] That evidence provided no sufficient basis for a finding that Mr Wurth would not continue to provide the limited assistance required as a result of the injury to the plaintiff's foot, nor that, if an award were made on this account, there was any likelihood that it would be employed for the purpose of obtaining commercial domestic assistance. No such award should be made."
These cases - Miller, Gordon and Sampco - may be taken as indicating that in some cases, where historically assistance has been provided on a gratuitous basis, evidence may be required to persuade a court at trial that commercial assistance will be engaged in future. On the other hand, in an appropriate case, it may be inferred that commercial services will be engaged - for example, where it appears that it was (financial) necessity that resulted in provision of services on a gratuitous basis, or that once funds were available the service provider might cease to do so gratuitously. Such inferences, which accord with common human experience, are not difficult to draw.
Importantly, it is to be observed that these were cases in which the question was whether or not the relevant claimant had proved, at trial on a final basis, a need for future commercial assistance. They were not preliminary determinations of whether it was "likely", in the relevant sense, that the claimant would do so. Admissible evidence probative of the relevant need is not essential to a conclusion that such need is "likely" to be established.
In the present case, his Honour accepted that the absence of precise evidence did not necessarily disentitle a claimant to an award for future commercial domestic assistance, and that a determination was to be made on all the evidence, including the plaintiff's particular circumstances. In that respect, his Honour observed that the appellant had five adult children, who left the family home at the end of 2017; that at that time, she ceased to engage a paid cleaner, as she was unable to continue to afford it (which his Honour thought was inconsistent with the assertion by her son that it was he who paid for the cleaner); that the cessation of the use of a paid cleaner coincided with the children leaving the home, which had no doubt reduced the need for domestic assistance generally; that only the appellant and her youngest daughter remained in the home; and that an older daughter, Elham, visited every second day for two to three hours to socialise and "help with domestic tasks as needed". His Honour then concluded that, apart from the lawnmowing and gardening for which the appellant had paid since the accident, "in the absence of evidence and upon assessment of the Plaintiff's particular circumstances, … there is no reason to find the present arrangement will change such that a commercial carer will be engaged to provide assistance for 3 hours per week".
True it is that damages for domestic assistance would be awarded only if it was to be sourced on a commercial basis. However, it was not for his Honour to find, on this application, whether the present arrangements for gratuitous care would change; the relevant question was whether it was 'likely' that the appellant would at trial establish a need for commercial assistance. Not only was express evidence that she intended to obtain it on a commercial basis not essential (as his Honour appears to have accepted), even at trial, but it is even less so on an application of this kind, where the question was only whether it was likely that the appellant would establish a need for commercial assistance at trial. His Honour was not required to accept or reject Ms Mullins' evidence, nor to find that a commercial carer would be engaged - only that there was a 'real chance' that the appellant would establish, at trial, a need for commercial assistance at that level.
In this respect, his Honour does not appear to have adopted the appropriate predictive approach, but rather to have embarked on an assessment of damages as if on a final hearing, albeit disregarding the respondent's medical evidence. The analysis of the appellant's particular circumstances as described by his Honour and summarised above did not suitably engage with the question of whether it was likely that gratuitous services would continue in the future. Perhaps because his Honour was under the misapprehension that Mr Boustani's statement was undated, the analysis did not refer to the circumstance that his assistance appears to have ceased when he left home at the end of 2017, being replaced by visits from one of the daughters.
Moreover, there was evidence supporting an inference that it was likely that gratuitous assistance would not continue in the future. First, this was not a case (such as Miller) of a resident carer-spouse, where it might much more readily be supposed that assistance would continue to be provided on a gratuitous basis: here, the son who had once provided assistance had left home, following which he predictably enough no longer provided such assistance; and the daughter who was providing gratuitous assistance no longer lived at home. Secondly, the appellant (or her son) had paid for a cleaner in the past, and this had ceased when the children moved out, because she could no longer afford it; thus financial necessity was in play, and with funds to do so, a cleaner could once again be retained. Thirdly, the appellant was already paying for lawn mowing and gardening, indicative of a preparedness to source commercial services to the extent that it was financially feasible. In those circumstances, there is a readily available inference that, if she were in a financial position to do so, she would engage domestic assistance on a commercial basis, rather than continue to rely on her daughter's periodical visits. His Honour was not required to draw that inference, nor is this Court; it will ultimately be a matter for the trial judge. But in the circumstances of this case, neither the absence of direct evidence of an intention to resort to commercial services, nor the appellant's circumstances, warranted the conclusion that there was no reason to suppose that the appellant would engage commercial assistance, and thus that it was not likely that the appellant would succeed at trial in establishing such a need.
In my judgment, there was at least a real chance that the appellant would establish at trial a need for in excess of two hours per week domestic assistance and that, given the funds to do so, she would source it on a commercial basis at a cost of $90 per week (1.5 hours domestic assistance per week at $40 per hour, and 0.5 hours mowing and gardening at $60 per hour - the rates quoted by Ms Mullen). That would capitalise to $79,650. [32] Added to the components of her claim which were not in issue, the total damages which the appellant is 'likely', in the relevant sense, to be awarded, amounts to $142,650 - well clear of the $123,000 threshold. His Honour was in error in concluding otherwise.

Conclusion

The appellant's explanation was full and satisfactory. The primary judge was in error in concluding otherwise. Added to the components of her claim which were not in issue, the total damages which the appellant is 'likely', in the relevant sense, to be awarded, amounts to $142,650.00 - well clear of the $123,000.00 threshold. His Honour was in error in concluding otherwise. The conditions for a grant of leave under MAC Act s 109 were therefore satisfied. Neither before the primary judge, nor in this Court, was any argument advanced that there was any discretionary reason to refuse leave if the conditions were satisfied; indeed, the circumstances that liability has been admitted, and that no prejudice has been identified, favour a grant of leave.
Although the appeal was purportedly brought as of right, leave to appeal is required, as the judgment of the court below was an interlocutory one. [33] However, as the decision below effectively disposed of the appellant's claim, and error resulting in injustice has been established, leave to appeal, which was not opposed, should be granted.
The appeal should be allowed. The orders made by the District Court Judge should be set aside, and in lieu thereof, there should be a grant of leave under s 109, nunc pro tunc.

Costs

In the course of the hearing, the appellant's lawyers were asked whether her solicitors were prepared to undertake to pay the costs of any appeal as a condition of a grant of leave to appeal. Such an undertaking was not proffered. Her counsel submitted (independently of the solicitors), that if leave to appeal were refused, the appellant would be liable to an adverse costs order but would seek indemnity from her solicitors under CPA s 99; the same would apply if leave were granted but the appeal failed; whereas if - as has eventuated - the appeal succeeded, she would seek costs of the appeal and in the court below.
Upon the assumption that an order for costs were made against the respondent, that would not be a complete indemnity, but would leave a solicitor-client costs component not recoverable from the respondent for which the appellant would be liable.
Moreover, while it may well be that the unsuccessful respondent should not be entitled to the benefit of a costs order either in this court or below, there remains a question as to whether the respondent should bear the appellant's costs, in circumstances where the view is open that responsibility for this litigation resides primarily with her solicitors, both in respect of failing to commence proceedings within time when instructed to do so, and in respect of furnishing an explanation which, though I have ultimately found it to be 'full and satisfactory', invited scrutiny because of its very economical disclosure of what the solicitors had done.
CPA s 99 empowers the court to make a 'wasted costs order' against a legal practitioner personally, where costs have been incurred by serious neglect, incompetence or misconduct of the practitioner, or improperly or without reasonable cause in circumstances for which the practitioner is responsible. The court may, by order, disallow the whole or any part of the costs in the proceedings, as between the solicitor and the client, or direct the solicitor to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs, or direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. Before such an order is made, the practitioner must first be given a reasonable opportunity to be heard. [34] This statutory power is available in the District Court, which does not enjoy inherent jurisdiction, as well as in the Supreme Court; [35] thus it is available not only in connection with the appeal, but also with the proceedings at first instance.
In Kelly v Jowett, [36] McColl JA, with whom Beazley JA (as her Excellency then was) and Barrett J (as he then was) agreed, said: "[60] The jurisdiction to make costs orders against legal practitioners referred to in s 99 and UCPR 42.3(2)(g), now commonly referred to as the "wasted costs" jurisdiction, must be exercised "with care and discretion and only in clear cases": Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at 320 92, per McColl JA (Hodgson JA and Ipp JA agreeing). In exercising the jurisdiction, however, the Court takes into consideration the public interest reflected in the legislative provisions to which I have referred, that litigants should not be financially prejudiced by the unjustifiable conduct of litigation by their or their opponent's lawyers: Ridehalgh v Horsfield [1994] Ch 205. It is the public interest in the administration of justice which is the source of duties that lawyers owe to the court: Rondel v Worsley [1969] 1 AC 191 at 227, per Lord Reid. [61] The wasted costs jurisdiction is based on the court's right and duty to supervise the conduct of its solicitors: Myers v Elman per Lord Atkin (at 302), per Lord Wright (at 318 - 319), per Lord Porter (at 334 - 336). The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which the solicitor is engaged professionally. The jurisdiction is exercised where it is demonstrated that the solicitor has failed to fulfil his or her duty to the Court and to realise his or her duty to aid in promoting in his own sphere the cause of justice. The order is for payment of costs thrown away or lost because of the conduct complained of and is frequently exercised in order to compensate the opposite party in the action: Myers v Elman, per Lord Wright (at 319); see also Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153 at [204], per Ipp JA (Beazley and Giles JJA relevantly agreeing)."
It is entirely conceivable that the solicitors may be able to demonstrate, by evidence and/or argument, that this is not a case in which the jurisdiction should be exercised. However, given that the Court has a right and a duty to supervise the conduct of its solicitors, that costs of litigation should generally be borne by those responsible for the litigation, and that at least on one view it might be said that the solicitors are responsible for the litigation, this is a case in which submissions should be sought as to the appropriate costs order, including whether there should be a 'wasted costs order'.

Orders

I propose the following orders: 1. Grant leave to appeal; 2. Allow the appeal; 3. Set aside the orders (2), (3), (4), (5) and (6) made by the District Court on 20 April 2020; 4. In lieu thereof, grant leave to the plaintiff Samar Abdul Rahman nunc pro tunc under (NSW) Motor Accidents Compensation Act 1999, s 109, to commence the proceedings instituted by her in the District Court against Sarah Al-Maharmeh by statement of claim filed in proceedings 2019/190375 on 19 June 2019; and 5. Direct that any party, and Prominent Lawyers in their own right, who wishes to make submissions as to costs, including whether any order should be made under (NSW) Civil Procedure Act 2005, s 99, disallowing the whole or any part of the costs in the proceedings as between Prominent Lawyers and the appellant, lodge submissions and any supporting evidence within 14 days, and that if any party or Prominent Lawyers wishes to respond to such submissions, they do so within a further 14 days thereafter.

Endnotes

The section is set out in full below at [30].
(NSW) Motor Accidents Compensation (Determination of Loss) Order 2009, cl 4.
Rahman v Al-Maharmeh [2020] NSWDC 129 at [93] ('Primary judgment').
MAC Act, s 109(2).
MAC Act, s 95(2)(b).
There appears to have been a dispute at first instance as to whether the limitation period expired on 14 or 15 February 2019. The primary judge did not resolve this question (Primary judgment at [9]). In this Court, the appellant's submissions include 14 or 15 February as the relevant date, while the respondent cites only 14 February. Ultimately, nothing turns on the difference and it is unnecessary to resolve it.
(2009) 78 NSWLR 161; [2009] NSWCA 408.
(1936) 55 CLR 499; [1936] HCA 40.
(2014) 69 MVR 127; [2014] NSWCA 433. See also Hunter v Roberts (2019) 88 MVR 456; [2019] NSWCA 116 at [5] (Meagher JA; Brereton JA and Simpson AJA agreeing).
(2009) 78 NSWLR 161; [2009] NSWCA 408 at [50] (Allsop P; Spigelman CJ, Campbell JA, Macfarlan JA and Young JA agreeing).
Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 at [52], [72] (Allsop P; Spigelman CJ, Campbell JA, Macfarlan JA and Young JA agreeing).
(2009) 78 NSWLR 161; [2009] NSWCA 408.
Russo v Aiello [2001] NSWCA 306 at [17] (Hodgson JA).
(2019) 88 MVR 456; [2019] NSWCA 116 at [18] (Meagher JA; Brereton JA and Simpson AJA agreeing).
(NSW) Motor Accidents Compensation (Determination of Loss) Order 2009, cl 4.
Eades v Gunestepe (2012) 61 MVR 328; [2012] NSWCA 204 at [8] (Basten JA).
(2003) 58 NSWLR 675; [2003] NSWCA 332.
(2010) 77 NSWLR 166; [2010] NSWCA 195 at [36] (Young JA; Handley AJA and Sackville AJA agreeing).
(2012) 61 MVR 328; [2012] NSWCA 204 at [10] (Basten JA).
(2015) 71 MVR 334; [2015] NSWCA 174.
Dijakovic v Perez (2015) 71 MVR 334; [2015] NSWCA 174 at [133].
As appears to have been assumed, for example, in Al-Ebedi v Guo [2017] NSWDC 107 at [24]-[25] (P Taylor SC DCJ).
Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430 at 443 (Hunt J).
(NSW) Civil Liability Act 2002, s 15(3).
Tcpt, 13 March 2020, p21(29)-(31).
(1936) 55 CLR 499; [1936] HCA 40.
[2009] NSWCA 353 at [21] (Allsop P, Basten and Macfarlan JJA).
(2014) 66 MVR 241; [2014] NSWCA 97.
Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 at [30].
See Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.
[2015] NSWCA 117.
The appellant had a remaining life expectancy of 36 years, so the applicable multiplier for future periodic payments was 885.
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36; Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374; Christie v Baker [1996] 2 VR 582; Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80.
CPA s 99(2).
Knaggs v J A Westaway & Sons Pty Ltd (1996) 40 NSWLR 476 at 485 (Simos AJA).
(2009) 76 NSWLR 405; [2009] NSWCA 278.

Amendments 12 May 2021 - Correction to end note numbering. 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: 12 May 2021

[1981] 2 NSWLR 430 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Rahman v Al-Maharmeh [2020] NSWDC 129 Russo v Aiello [2001] NSWCA 306 Sampco Pty Ltd v Wurth [2015] NSWCA 117 Sinclair v Darwich (2010) 77 NSWLR 166; [2010] NSWCA 195; Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408 Texts Cited: Nil Category: Principal judgment Parties: Samar Abdul Rahman (Appellant) Sarah Al-Maharmeh (Respondent) Representation: Counsel: J Morris SC, G Schipp (Appellant) J Turnbull SC, A Varola (Respondent)

Solicitors: Prominent Lawyers (Appellant) Moray & Agnew (Respondent) File Number(s): 2020/147838 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 129 Date of Decision: 20 April 2020 Before: Wilson SC DCJ File Number(s): 2019/190375

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was injured in a motor vehicle accident on 30 November 2014. Three years later, on 30 November 2017, the last day on which she could do so, she lodged an application with the Claims Assessment Review Service ('CARS'). An assessment issued on 14 December 2018, after which the appellant had two months to commence proceedings if she did not elect to accept it. On or about 21 December 2018, the appellant gave written instructions to her solicitors to reject the assessment and commence proceedings. The employed solicitor with carriage of the matter left the firm soon after, without commencing proceedings. Another employed solicitor was given carriage of the matter but did not commence proceedings within time. Proceedings were not commenced until 19 June 2019, approximately four months after expiry of the limitation period. The appellant applied for leave to commence the proceedings out of time, pursuant to s 109(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) ('MAC Act'). In the District Court her application was dismissed on the dual bases that (1) a 'full and satisfactory explanation for the delay' as required by s 109(3)(a) MAC Act had not been provided, and (2) the total damages of all kinds likely to be awarded were not at least 25% of the maximum amount awardable for non-economic loss under s 134 as at the date of the relevant motor accident (namely $123,000), as required by s 109(3)(b) MAC Act. On appeal, purportedly as of right, the appellant challenged both these conclusions. Held (per Brereton JA; Meagher JA and Leeming JA agreeing), granting leave to appeal, allowing the appeal, setting aside orders (2), (3), (4), (5), and (6) made by the District Court on 20 April 2020, and in lieu thereof, granting leave under s 109(1)(a) MAC Act to commence the proceedings instituted by her in the District Court by statement of claim filed on 19 June 2019: [89]-[91], [98(1)-(4)] (Brereton JA).

While the "full account of the conduct" referred to in the first sentence of s 66(2) MAC Act is not confined to that of the claimant personally but extends to the conduct of those who have acted or purported to act on behalf of the claimant, so far as it is relevant to the delay, this does not mean that the explanation is required to include "the actions, knowledge and belief" of the solicitors, as distinct from the claimant: it is the claimant who must provide the explanation for the claimant's delay in commencing proceedings: [39] (Brereton JA). Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408, applied.
Evidence as to why the appellant's solicitors failed to implement her instructions was not required for a full and satisfactory explanation to have been given for the delay. Such information was beyond the appellant's control and would have made no difference to the adequacy of her explanation, which was only required to fully account for her own actions, knowledge, and belief. Her explanation was therefore 'full': [42] (Brereton JA).

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