Rankin v Agars [2020] NSWDC 467 | Case summary | Zoe

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Rankin v Agars [2020] NSWDC 467 | Case summary | Zoe

Judgment

In the matter of Stephanie Rankin v Lawrence Agars I will give my decision. Pursuant to a motion filed 14 November 2019, the Defendant has sought dismissal of the proceedings pursuant to ss 73 and 109 of the Motor Accidents Compensation Act 1999 (NSW) (the 1999 Act) together with consequent orders as to costs.
The Plaintiff has sought in response an order granting her leave to pursue the proceedings pursuant to ss 73(1) and 109 of the 1999 Act. Without objection the Plaintiff was granted leave to file its motion formally in the registry, which she did on 16 June 2020. The Defendant did not object to both motions being dealt with simultaneously.
The Defendant relied on the affidavits of Angela Martignago dated 13 November 2019 and Sebastian Minh Huynh dated 9 June 2020. The Plaintiff relied on her affidavits dated 17 December 2019 and 9 March 2019 and those of her solicitor, Matthew James Forshaw dated 19 December 2019, 28 May 2020 and 12 June 2020. Neither party sought to cross-examine deponents of various affidavits. All affidavits were tendered as part of a joint exhibit marked Exhibit A1.
According to the Plaintiff's evidence, at 10.00pm on 3 September 2010 she was involved in a very serious motor vehicle accident whilst employed as an ambulance officer with the Defendant as her co-worker driver. The accident occurred at Parramatta Road, Camperdown and involved a pedestrian, Carole White, moving onto the roadway and being struck as she entered the third lane.
The Plaintiff's evidence was that the Defendant did not avoid the collision and struck Ms White with significant force, resulting in her death. The Plaintiff stated that she had the following day off on workers compensation before returning to full duties. The Plaintiff was provided with a return to work certificate dated 10 September 2010 and was referred by her general practitioner for counselling with a Ms Erigoni Vlass the same day.
The clinical notes of Ms Vlass were Annexure C to the Plaintiff's affidavit of 17 December 2019. They commence on 7 March 2011 and record a motor vehicle accident on 3 September 2010. Otherwise they record symptoms that the Plaintiff experienced and various stressors in her life. Relevantly, the records support the Plaintiff's account that over the next few months following the accident she began to experience psychological symptoms. They also record the Plaintiff stating that the pedestrian "ran out onto the road" and "no way could have avoided her". [1]
The Plaintiff continued to see Ms Vlass until 27 April 2011. She stated that throughout 2010 and 2011 she was struggling to cope with her psychological injury and felt she was falling apart, that she began withdrawing socially, and was moody and hypervigilant, anxious and paranoid. She stated that she felt miserable and unhealthy and did not know why and pushed herself to upskill and "get better" at her job. She stated that she had self-doubt as to her ability to work and exercised excessively to manage symptoms.
Over a year later the Plaintiff said that she and the Defendant were cleared in a lengthy internal investigation. This was carried out by the Plaintiff's then employer.
The Plaintiff stated that between 2010 and into 2011 she obtained treatment from the practice of Dr Christopher Eliades and, in particular, from a Dr Pete Trefeley at that practice. She was prescribed Valium to help her sleep deprivation and anxiety. Relevantly, the clinical records record the Plaintiff advised of the motor vehicle accident and referred to it as "not their fault". [2] The Plaintiff stated that she tried to cope through various mechanisms, including throwing herself more into work, studying and travelling, but her condition continued to worsen, culminating with suicidal ideation in 2014.
She then came to see a psychiatrist, Dr Leena Chaugule commencing 22 March 2014. Dr Chaugule records in her consultation notes of 22 March 2014 a history that "previously, 2009, hit and killed a pedestrian when driving ambulance,… 'that was just horrendous'." Under the heading, "Accident" Dr Chaugule records, "'I was so devastated.' 'Felt like I was falling off the edge of the earth.' Saw a counsellor for eight to ten sessions. 'I felt better then stopped.'" The clinical notes then record:- Interestingly, felt she had recovered, and although remembers clearly does not give an account of bad dreams, panic attacks reliving the event, or it compromising the work. Does not make her want to leave work. - I wonder about how she dealt with this but denies at present it was of concern. [3]
In late 2014 a work colleague of the Plaintiff committed suicide, causing her symptoms of depression to exacerbate and she consulted Dr Chaugule in December of 2014. [4] In July 2015, Dr Chaugule ceased seeing the Plaintiff in circumstances where she recorded the Plaintiff as consuming illicit substances. The notes do not record any indication of the potential to bring a motor vehicle accidents claim being discussed nor, according to the Plaintiff, was she advised by Dr Chaugule that she thought what was happening to her related to the accident.
The clinical notes from Mosman Private Hospital of 30 September 2016 record the Plaintiff being raped whilst working as a sex worker in 2015. [5] In March 2016 the Plaintiff stated that she was invited to a meeting with the Commissioner of the Ambulance Service of New South Wales to discuss work options, however, she was given no indication of potential rights under the Compulsory Third Party Insurance Scheme.
In June of 2016 a workers compensation claim was registered through the Treasury Managed Fund QBE (TMF QBE). The Plaintiff's evidence was that arrangements were made for her to be assessed by a medico-legal doctor, Dr Glen Smith on behalf of TMF QBE on 22 June 2016.
Commencing in 2016 the Plaintiff attended on Dr Marilyn McMurchie of the Sydney Doctors as her general practitioner. Her clinical notes were Annexure K to the Plaintiff's affidavit of 17 December 2019.
Since mid-2016 the Plaintiff has had a number of admissions as an inpatient to mental health facilities. These were to the Sydney Clinic, the Mosman Private Hospital and the South Pacific Hospital. The relevant clinical notes were appended as Annexures L, M and N to the Plaintiff's affidavit of 17 December 2019.
The Plaintiff also had a number of admissions to the South Coast Private Hospital commencing in late 2016 and 2017. The relevant clinical notes are to be found at Annexure O to the affidavit of the Plaintiff of 17 December 2019. In the notes of Dr Pakula from that hospital, the motor vehicle accident is recorded along with the Plaintiff's development of post‑traumatic stress disorder and the fact that she was ineligible for workers compensation. [6]
The Plaintiff says that she remained relatively sober since 2017 with a few relapses and has completely abstained from illicit substances since 2018. She states her dysfunction was such that she was unable to consider what was wrong with her, that she needed treatment, or that she should see a lawyer either for workers compensation or the motor vehicle accident as her focus was on her health and survival.
The Plaintiff's evidence was that she received a s 74 notice [7] from TMF QBE declining liability for workers compensation on the basis of Dr Smith's opinion around 8 July 2016. Thereafter she tried to contact Mr Geoffrey Adelstein of Adelsteins Solicitors in mid to late 2016, however, she was unwell, did not have a conference with any of the solicitors, and was not given advice to bring the motor vehicle accident. An email to Mr Adelstein dated 7 November 2016 is attached to the Plaintiff's affidavit of 17 December 2019 as Annexure Q. The fact that the Plaintiff was unwell at this time is referenced in the sent email and the clinical notes earlier discussed.
The Plaintiff says she had met with Slater and Gordon Solicitors by arrangement with the HSU, being her union, in relation to the internal investigation but she had not received any advice about either a workers compensation claim or motor vehicle claim. Whilst attempt to obtain Slater and Gordon's records were made, the latter would not release them without the HSU's concurrence.
The Plaintiff also gave evidence of contacting Mr Allan Anforth of Canberra Chambers by email on 31 December 2016. The evidence was that nothing came of that approach and she did not receive advice about time limitations for bringing the motor accident proceeding. By that stage the time for bringing proceedings had, in fact, expired under s 109 of the 1999 Act.
The Plaintiff then stated that her mother, Vicki Rankin, contacted Ryan Walker from Ryan Walker in or about early February 2017 because of the difficulties with workers compensation insurer. The relevant email correspondence dated 6 February 2017 is Annexure T to the Plaintiff's affidavit of 17 December 2019. The Defendant takes no issue that Ryan Walker did not assist as they did not do that work.
Consequently, the Plaintiff says she was referred to her present solicitors, Carroll & O'Dea, seeing Mr Matthew Forshaw on 10 February 2017. According to the Plaintiff, it was Mr Forshaw who advised her of the potential right in respect of both the motor vehicle accident and the workers compensation claim and this was the first time she believed she had the potential to make a motor accidents claim as she had erroneously believed that she was limited to workers compensation in circumstances where the accident happened while she was working.
It might also be inferred, based upon the Plaintiff's earlier statements as I have documented them, that she did not consider any liability attached to the Defendant in circumstances where she expressed a view that he was not at fault and both of them had been exonerated in the internal investigation. So much appears to be supported by the Plaintiff's evidence in her second affidavit dated 9 March 2020. That affidavit also discloses that it was only after speaking to Mr Forshaw that she became aware that, if there was some fault on behalf of the driver, a motor vehicle accident claim could be brought.
In her first affidavit of 17 December 2019, the Plaintiff says she was also not aware of the requisite timeframes for bringing proceedings under the 1999 Act until she was informed in the conference on 10 February 2017.
Mr Forshaw, in his affidavit of 19 December 2019, confirms that the Plaintiff was referred to him by Ryan Walker Legal in or about February 2017 and he saw the Plaintiff on 10 February 2017 advising of the potential entitlement to damages under the 1999 Act. He caused an email to be sent to the Ambulance Service of New South Wales on 13 February 2017 inquiring as to the third party insurer.
On the same day he assisted the Plaintiff in completing a personal injury claim form. The Plaintiff provided the supportive medical certificate the following day. Ultimately on 15 February 2017 he forwarded the claim form to the present insurer. That letter appears also to have been sent by post the same day.
Mr Forshaw's affidavit details and annexes correspondence with the third party insurer directed to the question of the provision of a full and satisfactory explanation for the delay in making a claim as provided in s 73 of the 1999 Act. Mr Hanna, who appeared for the Defendant, conceded that the contents of the correspondence mirrored the Plaintiff's evidence as earlier referred to.
The third party insurer finally rejected the explanation on 14 January 2019. On 2 July 2019 the Plaintiff's solicitors obtained an exemption certificate from the Claims Assessment and Resolution Service and a Statement of Claim was filed on 11 September 2019.
The Plaintiff's first argument accepts that to the extent the Defendant is seeking to rely on s 72 and s 73(1) of the 1999 Act, the relevant claim form should have been filed on 3 March 2011.
The claim in this case was sent on 15 February 2017. [8] The document and the covering letter showed a receipt by facsimile at 15.36 on 20 February 2017. The Plaintiff contends the Defendant had until 16 April 2017 to respond. As that was a Sunday over Easter and Monday 17 April 2017 was a holiday, the Defendant had, pursuant to s 73(4) of the 1999 Act, until 18 April 2017 to reject the claim. [9]
The letter denying the claim, however, was sent on behalf of the Defendant on 18 April 2017.
The Plaintiff contended that pursuant to UCPR 10.5(3), service was effected such that it is taken to be served on 20 April 2017 and hence the insurer lost the right to reject the claim.
The Defendant contended that s 222 of the 1999 Act prescribed the methods of service such that facsimile was not included. Relevantly, it provided for service by prepaid post but it had to be addressed to the registered office of the corporation. The Plaintiff replied that the use of the word "may be given or served" in s 222(1) of the 1999 Act connotes that the methods provided for are not the exclusive methods of service.
It is not in issue that the provision of a full and satisfactory explanation for delay is integral to a grant of leave under s 109 of the 1999 Act. Whether or not the Defendant lost the right to reject the claim under s 73, it still becomes necessary to determine whether a full and satisfactory explanation was provided in accordance with s 66(2) of the 1999 Act.
Section 66(2) distinguishes between two time periods; a full account from the day of the accident until the date of the explanation and a satisfactory explanation for the delay being the period which caused the need for the grant of leave. In light of the obvious requirements in s 109, for both to be addressed it is unnecessary to consider whether the insurer lost its right to object.
The explanation in this case was first given around 2 May 2017, hence the full explanation related to the period 3 March 2010 and 2 May 2017. The delay, being the period which the claimant was late in commencing the proceedings, is more than three years after the accident. Here the three years expired on 3 September 2013 and the proceedings were brought on 11 September 2019.
So far as the question of s 109 is concerned, there are two requirements for the grant of leave as recorded in s 109(3):- 1. The claimant has to provide a full and satisfactory explanation of the delay and, 2. The total damages of all kind likely to be awarded to the claimant if the claimant succeeds have to be 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 vehicle accident.
The Defendant has taken no issue with the Plaintiff meeting the requirements of s 109(3)(b).
The question of the provision of a full and satisfactory explanation was addressed by both parties.
The Defendant challenged the explanation being full in respect of two aspects: 1. The period between mid-2016 and the first consultation with Carroll & O'Dea on 10 February 2017 which it asserts was inadequately explained. In particular, the advice from Adelsteins is said to be inadequately explained because if there were any written communications from Adelsteins to the Plaintiff, they were not disclosed. 2. The fact that the Plaintiff was assisted by her mother who was referred to in the Plaintiff's evidence, it was observed that she had not put on any evidence of her own as to the assistance and advice she provided to the Plaintiff as required in the decision of the Court of Appeal in Walker v Howard [2009] NSWCA 408.
The Defendant advanced no other criticism of the fullness of the explanation provided.
Whilst the Plaintiff's affidavit of 17 December 2019 says the Plaintiff tried to contact Adelsteins in mid to late 2016, the email of 7 November 2016 reveals that the Plaintiff spoke to Mr Adelstein several months prior. It adds that she was too unwell to attend the scheduled appointment and was seeking to meet again if possible.
The email indicates that she anticipated readmission to the Mosman Private Hospital and she was at risk of relapse. There is evidence that the Plaintiff discharged herself from Mosman Private on 31 October 2016 [10] but reattended on 10 and 13 November 2016. [11] The clinical notes of Dr Pakula showed that the Plaintiff was admitted to the South Coast Private Hospital between 16 December 2016 to 26 December 2016 and 1 February 2017 to 22 February 2017. [12]
It is not apparent that there was any follow up with Adelsteins and contact seems to have ceased. Indeed, the Plaintiff's evidence was that she did not have a conference nor was she given any advice about a motor vehicle claim. Certainly it appears confirmed by the fact that she contacted Mr Anforth on 31 December 2016 after her discharge from the South Coast Private Hospital and it was at that point that the Plaintiff turned her attention elsewhere for advice.
The contact by the Plaintiff's mother with Ryan Walker Solicitors was, in my view, fully accounted for by the email dated 6 February 2017, sent at a time that the Plaintiff was again in hospital. There was no suggestion in the material that the Plaintiff's mother had any broader involvement in seeking legal advice beyond that disclosed by the Plaintiff in her affidavit. It follows that I am satisfied that the Plaintiff has provided a full explanation.
The fact that evidence was not put on by persons other than the Plaintiff is, in my view, of no consequence. As was stated by Allsop P (as his Honour then was) at [110] of Walker v Howard [2009] NSWCA 408:- …Section 109(3) requires the claimant to provide the explanation…
The next question which arises is whether the Plaintiff has satisfactorily explained the delay. The Defendant contends that the explanation was not satisfactory. Section 66(2) states:- …The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay.
The Defendant contended that the Plaintiff had not met satisfaction as:- 1. There was a delay of almost six years before seeking legal advice on what her rights were which was manifestly unreasonable. The Defendant emphasised the length of the delay and that it went directly against the objects of s 5 which (inter alia) included the encouragement of early treatment and rehabilitation and early resolution of the claims. It pointed to s 6 that required an interpretation that would promote the objects of the 1999 Act over one that did not. 2. The delay was unreasonable in the Plaintiff's subjective circumstances. The failure to seek advice is said to be more egregious as the alleged consequences of the accident take hold. It was observed that there was a sudden deterioration in 2014 which temporarily related to the suicide of a colleague and the cessation of work in 2016 which would have provided a greater impetus to explore one's legal rights especially when encouraged in general terms by her employer.
The Plaintiff contended that, bearing in mind the circumstances of the accident, it was not suggested that the driver was anything other than a small portion to blame. It was stated that in common experience one would readily blame the accident to fall on the deceased pedestrian. From a legal point, however, even if the driver were found to be in breach of duty of care, where there is a 90% or even 100% contributory negligence, the Plaintiff could be entitled to succeed on her cause of action.
The Plaintiff's counsel maintained that the Plaintiff viewed the effects of the accident as a workers compensation claim rather than an entitlement under the 1999 Act. Attention was drawn to the fact that only after a few months the Plaintiff began to experience psychological symptoms and she had difficulty coping with her anxiety and depression which continued to worsen over the year. It was submitted that despite displaying a number of psychological problems, there was a clear but not uncommon pattern seen of a failure to recognise the condition by the Plaintiff. The Plaintiff thereafter threw herself into work, accepting higher duties and undertaking intensive training said in hindsight to be a coping mechanism. She sought psychiatric help in 2014 but was not advised of the problems she was suffering being related to the car accident.
Subsequent to the suicide of a co-worker in late 2014, the Plaintiff suffered significant depression between March 2015 and October 2016 and began taking crystal methamphetamines. After a diagnosis of PTSD in 2016 she was advised of her workers compensation rights and disability rights but not rights under the 1999 Act.
It was contended that the Plaintiff thereafter had significant psychiatric disability and the extent of her dysfunction did not enable her to pursue her rights until her workers compensation rights were declined in 2016. Her attempts to seek assistance were not successful or able to be followed through with until she was referred to her current solicitors who she saw on 10 February 2017. It was submitted that Mr Forshaw's actions amounted to a full and satisfactory explanation in respect of the time following that consultation. The Defendant did not dispute that this was so.
The Plaintiff submitted that between 2012 and 2014 the Plaintiff appeared to be coping well with her work. A reasonable person has to be looked at in terms of the advice her general practitioner gave her to explain the relationship between her problems and the subject accident. It was submitted that a reasonable person in her position suffering significant psychological problems would not understand the relationship between the nature and extent of her problems and the subsequent accident or that if it leads to illegal drug use that it might properly be compensable.
The Plaintiff argued that between 2012 and 2014 she appeared to be coping reasonably well and a reasonable person has to be looked at in terms of the advice that she was given by her general practitioner to explain the relationship between her problems and the subject accident.
A reasonable person, it was said, was highly unlikely to understand that she may have rights under the 1999 Act because of the circumstances of the injury where the pedestrian was almost certainly at fault.
The Defendant sought to place some reliance on what was said by McColl JA in Figliuzzi v Yonan [2005] NSWCA 290 at [139]. However, as was noted by McCallum in Soo Pin Tan v Lorima Basaga [2010] NSWSC 1143 at [27]:- An important feature in Figliuzzi was the fact that the claimant was employed by the Legal Aid Commission, although as a clerk, not as a lawyer. Tobias and McColl JJA each concluded that a reasonable person in her position, working in a legal environment, would not have relied on her own belief as to her legal rights but would have sought legal advice to ascertain whether her belief was correct.
Ultimately I would adopt McCallum JA's exposition of the relevant legal principles to be applied as expressed in Soo Pin Tan v Lorima Basaga (supra) at [24] to [32]. In doing so, I am satisfied on the strength of the Plaintiff's unchallenged evidence of the following:- 1. Following the accident on 3 September 2010 and until otherwise advised by Carroll & O'Dea Solicitors at a conference on 10 February 2017, the Plaintiff had not considered that she had a claim against the Defendant under the 1999 Act. That belief was reinforced by the circumstances of the collision that both she and the Defendant had been exonerated in the internal investigation conducted by the Ambulance Service. The fact that this was her belief is documented in the clinical notes of the practitioners that I have earlier referred to. 2. Despite seeing and speaking to lawyers following the accident up until 10 February 2017 in connection with the accident, specifically: 1. the internal investigation and 2. her workers compensation rights, the Plaintiff was not advised of the potential to bring proceedings under the 1999 Act before her conference with Mr Forshaw. 1. The Plaintiff had minimal time off immediately following the accident but had treatment for psychological symptoms that developed from Ms Vlass. The Plaintiff threw herself into her work, travel and exercise and study and was able to continue to function until 2014 when she began to experience suicidal ideation. 2. I accept that the treatment of Dr Chaugule, psychiatrist, did not result in her ascertaining that her condition was related to the subject motor vehicle accident and it was only in 2016 that she was diagnosed with post-traumatic stress disorder and made her workers compensation claim in June of 2016. Since that time her condition, including the use of illicit substances, led her to have a number of impatient attendances at various institutions that I have earlier referred to. 3. The Plaintiff's claim for workers compensation was denied in mid-2016, however, her capacity to pursue legal redress was inhibited by her condition and the treatment she was required to undertake.
As was stated by Allsop P (as his Honour then was) giving the leading judgment in Walker v Howard (supra) at [68]:- …That placement of a fictional person in that position [the claimant's position] can be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable given the claimant's position...
At [69] his Honour added that:- The phrase 'position of the claimant' is not limited to persons or physical characteristics of the claimant. It connotes aspects of place and circumstances relevant to the enquiry...
At [97] his Honour stated:- As I have already said in discussing the text of these provisions, the 'position of the claimant' is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are.
Whilst the Defendant identified that the delay was unreasonable in the Plaintiff's subjective circumstances, it did not identify any of the subjective characteristics of the Plaintiff which ought not to be ascribed to a reasonable person in the Plaintiff's position.
In my view, a reasonable person in the Plaintiff's position would have been justified in experiencing the same delay. The delay was brought about by the circumstances of the accident, the onset of symptoms led her to go off work and the medical advice that she received, along with the legal advice, which did not indicate to her the potential to bring a motor accidents claim prior to the consultation with Mr Forshaw.
No doubt some things may have been able to be done more quickly in this chronology of events but perfection or the most rapid dispatch is, as Allsop P stated in Walker v Howard at [108], not the test. The test is whether a reasonable person in the Plaintiff's position would have been justified in experiencing the delay. In my view the answer to that question in the circumstances is, "Yes".
I note that the Defendant has also taken no issue with the sequence of events following Mr Forshaw's consultation on 10 February 2017.
Consideration of whether to grant leave, however, involves broader considerations under s 109 of the 1999 Act.
The Defendant, relying on what was said by McHugh J in Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 and Sheller JA in Holt v Wynter (2002) 49 NSWLR 128 at 147 at [119], submitted that there were two distinct areas of prejudice:- 1. The Defendant ambulance officer will presumably be questioned and criticised as to his actions and recollections of the mere seconds in time as to what happened ten years ago and even if he does retain some memory of the collision that does not mean that he can face a fair trial so long ago after the event. It also raised the fact that according to the affidavit of Sebastian Huynh, solicitor, of 9 June 2020 CCTV footage of the accident captured in a camera at an establishment referred to as "KIDSTUFF" has been marked by NSW Police as "not in the archive case file" [13] and police have not produced in response to a subpoena and, according to police, cannot locate or produce the item. Furthermore, using police contact records, contact has not been able to be made with two witnesses being Sarah Reay-Young and Patrick Motum. 2. The Defendant asserts that between the date of the accident and when the claim was lodged, the Plaintiff experienced the death of a colleague in 2014, multiple forms of substance abuse, rape and domestic violence. The Defendant contends that being denied a chance to investigate the claim through early medical assessment the Defendant faces the unfair task of trying to disentangle nearly ten years of eventful post-accident history against a claimant who seems to be attributing all her problems to the motor vehicle accident.
I accept that as time has elapsed memories of the events may well have faded. According to the evidence before me, the accident was investigated internally by the Plaintiff's and Defendant's employer. It is apparent that a large volume of material was also obtained as evidenced in the report of the Defendant's accident reconstruction expert, Mr William Keramides. The statements briefed were proximate to the time of the accident. The report includes references to physical evidence and photos leading Mr Karamides to conclude that the Defendant's actions were appropriate and the cause of the collision was attributable to the deceased. The Plaintiff has briefed Dr George Rechnitzer who opined that the accident was avoidable on the part of the Defendant.
I am not satisfied in the circumstances described in Mr Huynh's affidavit that the inability to contact either Ms Reay Young or Mr Motum could be described as exhaustive being based on contact records from New South Wales Police at the time of the accident.
Whilst the CCTV footage may not be available, it appears to be referred to in the report by NSW Police to the coroner. The report indicates that the position and angle did not allow for a calculation of the Defendant's speed, although movement was consistent with that of other vehicles. Some frames from the CCTV are to be found in Exhibit A1 at 1173 to 1174. They are described as being of very poor quality and unable to be discerned. The CCTV is otherwise described as grainy, pixelated, dark and of poor quality such that it is not possible to see the deceased. [14]
With regard to the Plaintiff's damages case, it is noteworthy that detailed contemporaneous records of treatment are available as earlier discussed. That evidence is available to both parties bearing in mind that the decision to make a claim was not advanced until after 10 February 2017.
Ultimately, to the extent that other factors in the Plaintiff's life may account for the injuries and disabilities that the Plaintiff complains, the Defendant bears only an evidentiary onus. Such is clear from Seltsam v Ghaleb [2005] NSWCA 208 per Ipp JA (with whom Mason P agreed) at [104]-[105]). Once the evidentiary onus is discharged, the onus is on the Plaintiff to satisfy the Court on the whole of the evidence that the extent of the injuries and disabilities are caused by the Defendant's negligence.
Although in an application of this kind the onus is on the Plaintiff, the matters identified by the Defendant do not, in my view, identify a significant prejudice that would be occasioned by the grant of leave. Limitation legislation needs to be assessed against the four rationales referred to by McHugh J in Brisbane South Regional Health Authority v Taylor at 552-3:- First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive and even "cruel" to a Defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third…insurers, public institutions and businesses have significant interest in knowing that they have no liabilities beyond a definitive period…the final rationale for limitation periods is that the public interest requires disputes be settled as quickly as possible.
In this case the time that has passed is significant. The 1999 Act itself promotes early notification and disposition of claims. Regrettably that did not occur in the unusual circumstances I have outlined. The legislature nevertheless provides for a grant of leave upon a case being made for its exercise.
In Salvation Army (South Australian Property Trust) v Graham Rundle [2008] NSWCA 348 at [96], McColl J stated:- Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential Defendant…'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely…For a trial to be fair, it need not be perfect or ideal. (references omitted)
Here, notwithstanding the delay, I am satisfied that a fair trial is possible. There is no significant prejudice and a full and satisfactory explanation for the delay has been provided. The evidence before me does not suggest that a bringing of proceedings is futile. The Defendant accepts that the Plaintiff's injuries are such that the threshold of s 109(3)(b) are met.
Overall, I am satisfied that the Plaintiff has demonstrated that a grant of leave is appropriate. For these reasons, I would grant the orders sought in the Plaintiff's notice of motion and dismiss the Defendant's motion.
Both parties sought costs. The grant of leave is something that the Plaintiff needed to establish. It did not seek to do so until it foreshadowed the bringing of a motion in the context of the Defendant's motion during the course of the hearing. Notwithstanding this, neither party in my view has acted unreasonably. The Defendant has been forced to a position of needing to respond to the claim in circumstances where the information provided to the Court was extensive and went beyond what had been supplied prior to the proceedings.
The Plaintiff agitated the application late in circumstances where she was out of time. In all of the circumstances I am of the view that the appropriate costs order is that the costs in relation to both motions should be costs in the cause.