RITA HARIKA v STANLEY TUPAEA

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1685/02 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41234 of 2002

MASON P TOBIAS JA FOSTER AJA

The appellant was a passenger in a stationary car that was hit from behind by a car driven by the respondent. She suffered soft tissue injuries.

The claim on the respondent's insurer was not made until 15 months after the accident. Accordingly, under s43A of the Motor Accidents Act 1988, the respondent was entitled to have the proceedings dismissed if he satisfied the court (1) that the appellant did not provide a full and satisfactory explanation for the delay in making her late claim, and; (2) that the total damages of all kinds likely to be awarded if the claim succeeded was less than 10% of the maximum that could be awarded for non-economic loss at the date of the accident.

HELD per Mason P (Tobias JA and Foster AJA agreeing), upholding the appeal:

1. Karpin DCJ was not properly satisfied as to the deficiencies in the appellant's explanation. [17] (a) The decision of the trial judge involved specific factual errors, questionable inferences from primary facts and omission to have regard to a critical matter. [11] - [16]

2. The respondent has not satisfied the Court that the appellant's explanation was anything other than full and satisfactory. [18] (a) The appellant gave a full account in that she placed the whole picture before the court. The respondent has not satisfied the court that a reasonable person in the appellant's position would have acted otherwise than she did. [20]
3. The respondent has not satisfied the court that the total damages of all kinds "likely to be awarded to the claimant if the claim succeeds" are less than $27,300. [23]-[24], [45]-[46] (a) The word "likely" should be construed in context. In this case, where the court is engaged in a predictive exercise and not the trial of the claim, the word is to mean "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent": Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-7 per Deane J, 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. [25] - [27]

(b) The body of medical evidence precludes the Court from being satisfied on the material before it that the damages likely to be awarded will be less than 10 per cent of the maximum that may be awarded for non-economic loss. [45] -[46]

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41234 of 2002

MASON P TOBIAS JA FOSTER AJA

RITA HARIKA v STANLEY TUPAEA JUDGMENT 1 MASON P: An application for leave to appeal and the appeal itself were heard concurrently. The matter is appropriate for leave, for reasons which follow. 2 The appellant was a passenger in a stationary car that was struck from behind by the car driven by the respondent. Everything points to negligence on the respondent's part. The appellant suffered soft tissue injuries. 3 The accident occurred on 26 March 1999. Proceedings for damages were commenced in the District Court on 22 March 2002. The accident had been reported in compliance with s42 of the Motor Accidents Act 1988, but the claim on the respondent's insurer under s43 was not lodged until 30 June 2000. In the circumstances, the respondent was entitled to have the proceedings dismissed if he satisfied the court (1) that the appellant did not provide a full and satisfactory explanation for the delay in making her late claim and (2) that the total damages of all kinds likely to be awarded if the claim succeeded were less than 10 per cent of the maximum that could be awarded for non-economic loss at the date of the accident (a sum agreed at $27,300). See s43A(7) and generally Buller v Black (2003) 56 NSWLR 425 and Russo v Aiello [2003] HCA 53. 4 Karpin DCJ dismissed the proceedings on both grounds. 5 The application proceeded on affidavit evidence with none of the deponents being required for cross-examination. 6 The respondent's affidavits established the chronology of the late claim. The claim form was received on 30 June 2000. The insurer promptly notified that s43 had been breached and called for an explanation plus supporting evidence concerning the damages threshold. The appellant submitted material on 31 October 2000, but the claim was rejected on both grounds on 21 November 2000. 7 The respondent's evidence also included a medical report from Dr Neal Thompson, a consultant orthopaedic surgeon. 8 The appellant's evidence in the application consisted of her own affidavit and an affidavit annexing medical reports from three doctors,:Dr Asaad Sheiban (the appellant's treating general practitioner), Dr Grahame Mahony (an orthopaedic specialist to whom the appellant was referred for treatment) and Dr Neil Berry (who had been retained as a medico-legal consultant). The appellant also tendered an MRI scan report. 9 Differing views have been expressed as regards the standard of appellate review concerning a finding that the primary judge was "satisfied" in accordance with s43A(7) on the full and satisfactory explanation issue (Buller at 434 [39], 442 [96], Russo at [27]). The question whether this is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499 can be resolved when and if it becomes critical. Assuming that the appellant must satisfy the House v The King criteria, she has done so in the present case. 10 As to full and satisfactory explanation, the learned primary judge said: In essence, the Plaintiff's affidavit filed on this Notice of Motion simply reiterates that which appears in the statutory declaration furnished to the Defendant. It must be said that there are substantial deficiencies in the explanation provided. It is vague as to dates upon which or even periods within which the Plaintiff formed a view that her condition was worse than she had originally anticipated. There is some merit in the Defendant's submission that it is almost impossible to determine the time at which the Plaintiff held certain beliefs or the basis upon which they were formulated regarding her condition. The Plaintiff's affidavit material does not provide an explanation as to when she became aware that she had any legal rights although she clearly became aware of the limitation period when she consulted a solicitor. Surely, a requirement of the section is that the Plaintiff indicate when it was that she appreciated she had any legal rights. The only explanation for seeking legal advice is that the Plaintiff became concerned that she could not afford to pay for physiotherapy. The evidence is silent as to whether she knew or believed she had legal rights at or about the time she consulted her solicitor or at some previous time. The general tenor of the affidavit tends to the view that the Plaintiff probably did know that she had legal rights but simply failed to take any action because she believed her problems would resolve and she was busy with her domestic and motherhood duties. It is however, not possible to make any specific finding as to those matters.

Further, the Plaintiff's solicitor provides no explanation concerning the delay in providing the statutory declaration to the defendant. That is a period of a further four months entirely without explanation, accept [sic] for the assertion in the Plaintiff's solicitor's letter of the 17th October 2000 that medical reports were being awaited. That hardly accounts for the delay in providing a full and satisfactory explanation from the Plaintiff as to her reasons for delaying making a claim.

s.40(2) of the Motor Accidents Act provides that full and satisfactory explanation for delay requires 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 section further provides that … "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 dealing with this matter I have concentrated on the period between the expiration of the period within which the Plaintiff might properly have made her claim, and the date upon which the claim was actually submitted to the Defendant. Section 40(2) clearly makes reference to the period including from the date of the accident. And there is no more expansive explanation from the Plaintiff in relation to that period. She sets out some account of her actions over the relevant period. There is however, no material which deals with her knowledge and belief throughout the relevant period, and in so far as she gives evidence of any knowledge it is of acquiring the information that the six month period had expired. Given the paucity of information, it is difficult to make a judgment as to whether this explanation can be held to be a full and satisfactory explanation. The material adduced to provide the explanation suffers from a lack of clarity as to when the Plaintiff obtained relevant knowledge and or belief. Given the lack of concrete evidence regarding those matters it is difficult for the court to put itself in a position of a reasonable person in the position of the claimant. It is difficult to determine whether such a reasonable person would have failed to comply with the duty upon the claimant or whether it would have been justified in so failing given the lack of explanation as to the Plaintiff's actions, knowledge and belief.

I find that the explanation provided is not a full and satisfactory explanation as required by the Act, and that being so, it cannot be a satisfactory explanation.

11 Regrettably, this reasoning is vitiated by material errors of fact and omission to have regard to a critical matter. 12 The appellant's unchallenged affidavit evidence included the following: 3. As a result of the motor vehicle accident, I suffered injury to my neck. My head was thrown violently back and forth, causing extreme pain to the back of my neck.

I consulted my General Practitioner, Dr Sheiban, on the day of the accident.

Dr Sheiban examined me and said words to the following effect: "You can expect to feel sore for about a week". He also gave me exercises to do and prescribed pain killers

After a few days my neck started to improve and I did not expect that I would have lasting symptoms from my injury.

Since that time, I have experienced pain and stiffness in my neck, causing me difficulties with my sleeping and restriction in my daily activities including caring for my children and household chores.

Being a busy mother I was concentrating only on managing in my daily life and on recuperating from the accident, and despite the episodes of pain, I was not aware of the extent of my injury and remained hopeful that my condition would improve.

Towards the end of 1999 these episodes of pain and stiffness were occurring more often.

I consulted Dr Sheiban from time to time and on 11 January 2000, he referred me to Dr Somaia of Bankstown Imaging Centre, Bankstown, for x-rays.

Dr Sheiban told me that these x-rays showed some abnormalities and recommended physiotherapy and exercise.

I was 32 years of age at the time and I felt confident that with regular exercise and some physiotherapy treatments that I should have been able to cope and that eventually I would be able to control the episodes of pain and discomfort.

Soon after I discovered that I was pregnant. Dr Sheiban advised me that I should wait until after the baby was born to start my physiotherapy treatment.

The episodes of pain and discomfort continued and became more regular. I was also experiencing migraines increasingly.

I became alarmed by this continuing deterioration. I became concerned firstly, that I may no longer be able to tend to my children and complete my household duties without assistance. Secondly, I became concerned that I would not be able to return to the workforce.

It was always my intention to return to the workforce at least twelve months after the birth of my fourth child. I was employed by Colonial State Bank from 1986, with a twelve month break, until 1998. When I left the Bank I was a supervisor in the Accounts Department.

In approximately March 2000 I was offered a position with Colonial State Bank but could not accept the position because of my latest pregnancy. With the increased regularity of the episodes of pain and the impact such episodes were having on my general ability to lead a normal life, I decided to seek legal advice.

This decision to seek legal advice was also due to the fact that it would not be possible for me to meet the expense of physiotherapy treatment.

On 6 July 2000 I met Ms Diana Farah of Carroll & O'Dea solicitors. Ms Farah advised me of the requirement to lodge a claim form within six months of the date of the accident. This was the first time that I became aware of any such time limit. Had I been aware of the time limit, and of the serious nature of my injuries, I would have lodged a clam form before the expiry of the six month time limit.

13 The appellant never suggested that she had failed to appreciate her legal right to bring timely proceedings for damages against the driver of a vehicle that ploughed into the back of the car in which she was a passenger. Judge Karpin was correct to infer that the appellant probably knew that she had legal rights, but in error to place weight on this finding. It had slender materiality. 14 Much more important was the appellant's knowledge of her legal obligation to lodge a claim within six months of the accident. Her Honour does not address this. Yet the unchallenged evidence (s19) was that the appellant was ignorant of this duty until she got legal advice in July 2000, and that she would have lodged the form in time had she been aware of the time limit. 15 There are other conclusions in the judgment which involve specific factual error or inferences from primary facts with which I respectfully disagree. Thus, I cannot agree that the appellant's affidavit was vague as to the periods within which she formed a view that her condition was worse than originally anticipated (contrast s9ff). Nor was concern about the ability to pay her physiotherapy the "only explanation" for seeking legal advice (contrast s17). There is also error in the finding early in the judgment that the x-rays commissioned by Dr Sheiban on 11 January 2000 were not carried out until 2 August 2000 (contrast s11 and Blue 48V). 16 Judge Karpin also regarded adversely to the appellant the delay between the service of the claim form on 30 June 2000 and the provision of the appellant's statutory declaration on 31 October 2000. Earlier in the judgment her Honour had observed that this was not an issue in the application (Red 15M). Yet later, in the passage quoted above, her Honour took account of the lack of explanation for this four month delay as an aspect of absence of full and satisfactory explanation. Senior counsel for the respondent accepted that this was an irrelevant matter in light of s40(2)'s focus upon the need to explain the delay preceding lodgement of the claim (see also Aiello at [7] per Gleeson CJ). 17 For these reasons, it must be concluded that Karpin DCJ was not properly satisfied as to the deficiencies in the appellant's explanation. The parties agree that it falls to this Court to address the issue afresh. The relevant principles have been recently expounded by the High Court in Aiello (which was not a case involving lack of awareness of the time limits on making a claim: see [10] per Gleeson CJ). 18 In my view, the explanation was full and satisfactory. Or, to put it more accurately, the respondent has not satisfied me otherwise. The appellant's unchallenged evidence showed that she was initially advised that her problems would resolve. They did not, but they did not worsen until towards the end of 1999 (ie after the six month period had elapsed). Their continuation until then was masked to a degree by the appellant's domestic situation and her justified optimism stemming from the early medical advice (s8). 19 Despite x-rays in January 2000 and the exercise/physiotherapy regime prescribed by the general practitioner, the situation worsened thereafter progressively and alarmingly (ss10-17). Further details of the condition from time to time are provided in the reports of the appellant's general practitioner. There is no suggestion that other doctors were involved during the relevant period. 20 In my view, this was a full and satisfactory explanation. The appellant gave a full account in that she placed the whole picture before the court. She was not challenged in cross-examination as to its fullness or adequacy. Nor did the respondent establish to my satisfaction that a reasonable person in the appellant's position would have acted otherwise than she did. Her evidence as to delay in the onset of symptoms was relevant (cf s43A(3)) and compelling in its justification for her delay in seeking legal advice. Her ignorance of the duty to lodge a claim within six months was an unchallenged justification for delay, at least in a situation where the delay in seeking legal advice was also justified. 21 As to the $27,300 damages threshold, Karpin DCJ: On the available medical evidence and the available evidence from the Plaintiff as to what might constitute the ambit of her claim, I am not persuaded that the Plaintiff's claim would reach the necessary threshold figure. I am of the view that her damages would lie in the region of 15 - 20%. There is little or no evidence of future economic loss, although a modest cushion might be appropriate, and other sums awarded would not, in my view, bring her to the threshold. In those circumstances for the reasons given I am of the view that the Defendant's Notice of Motion must succeed and the Plaintiff's claim should be dismissed on the grounds that it breaches s.43 and s.43A of the Motor Accidents Act 1998. 22 Senior counsel for the appellant was critical of the degree to which the reasoning process is exposed in these brief conclusions. I share these concerns. However, this was not raised as a ground of appeal. 23 The matter at issue in the appeal is whether the court is satisfied on the evidence that the total damages of all kinds "likely to be awarded to the claimant if the claim succeeds" are less than $27,300. This Court is in as good a position as the primary judge to consider this issue, although we would have to be persuaded of error before overturning her conclusion. 24 The persuasive onus rests squarely on the respondent in a situation like the present where the appellant tendered the primary factual and medical evidence as to her injuries and disabilities. Her Honour's statement that she was "not persuaded" that the claim would reach the threshold suggests that the onus may have been reversed. In any event, I am of the opposite view on the facts. 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. 28 The appellant had provided the following particulars in her statement of claim: PARTICULARS OF INJURY : (a) Pain. (b) Shock. (c) Soft tissue injury. (d) Bruising and abrasions generally. (e) Injury to neck. (f) Injury to back. (g) L5/S1 posterior annular tear. (h) Aggravation of degenerative condition in back. (i) Headaches. (j) Migraines. (k) Injury to left buttock. (l) Injury to left leg. (m) Anxiety. (n) Depression. PARTICULARS OF LOSS AND DAMAGE: (a) The Plaintiff has incurred medical, hospital, pharmaceutical and other expenses, detailed particulars of which will be supplied in due course. (b) As a result of the abovementioned injuries the Plaintiff has been incapacitated for work and lost salaries and wages which otherwise would have been earned, detailed particulars of which will be supplied in due course. (c) As a result of the abovementioned injuries and disabilities, the Plaintiff's earning capacity has been restricted. (d) As a result of the abovementioned injuries and disabilities, the Plaintiff's amenity and enjoyment of life has been restricted. (e) As a result of the abovementioned injuries and disabilities, the Plaintiff's ability to carry out household chores has been restricted.

29 Thus, the damages claimed at least included damages for non-economic loss; medical, hospital and pharmaceutical expenses; and damages for impaired earning capacity. In this Court, the appellant also suggested that there could be a claim for paid and unpaid housekeeping assistance, given that the appellant is the mother of four young children. There is no indication that such a claim was raised in the District Court. 30 It is not clear whether the statement of claim was verified. In any event, it was not tendered as evidence in the application (contrast Aiello at [26], [67]). In these circumstances I shall not treat the pleading as having any role beyond setting the ambit of the plaintiff's claims for damages. 31 If one applies the table for computing damages for non-economic loss, the appellant would pass to within $300 of the monetary threshold required by s43A if her non-economic loss alone brought her within the category of 27% of a most extreme case. Or, to put the matter more accurately, the respondent would fail to satisfy the court within s43A(7) unless it showed that a greater award for non-economic loss was not likely to be awarded. 32 As indicated, the medical material tendered in the District Court on behalf of the appellant consisted of reports from her general practitioner, a treating specialist, and a medico-legal expert. There was also an MRI scan report. 33 The general practitioner, Dr Sheiban reported that the appellant consulted the doctor on the day of the accident. She complained of pain in the back of her neck and occiput. Neck movements were significantly reduced in all directions. Muscle spasm and tenderness of the cervical muscles were noted. Analgesics were prescribed and the appellant was asked to rest. 34 The appellant presented on 30 April 1999 with deteriorating neck pain and headaches, as well as pain down the lower back. 35 On 28 May 1999 she complained of two days of increasing pain in the left lumbar region as well as a burning sensation in the right thigh. She was prescribed Orudis SR tablets. Her reported condition deteriorated further, being irritable, shaky and in distress. This created tension at home and reflected badly on her family. She was unfit for work from 26 March 1999 until 11 June 1999. Thereafter she was fit for suitable duties which did not involve bending or heavy lifting. 36 Dr Sheiban's report refers to various x-rays, without suggesting that they reveal anything of present relevance. This case was always fought as one involving soft tissue injury. 37 Dr Sheiban further reported that in November 2000 the appellant complained of persistent pain in the back of her neck, more on the right side. She had also experienced lower back pain. 38 In a report dated 8 May 2001 Dr Sheiban concluded: The diagnosis is consistent with musculoligamentous sprain of the cervical, thoracic and lumbar spines, as well as post-traumatic occiputal headaches. She requires further medical treatments and supervision, including physiotherapy. 39 Dr Mahony saw the appellant on referral from Dr Sheiban on 3 August 2002. At that stage the appellant presented with the following symptoms: She had pain in the back of her neck, it radiated to the occipital area and to the upper aspect of her head and to the backs of both shoulders but not to the remainder of the upper limbs.

She had low back pain, it was associated with pain in the buttocks but not to the remainder of her legs.

40 Dr Mahony concluded that the appellant had developed symptoms referable to a cervical strain. The headaches in the upper aspect of her head were considered to be referred from the neck. He concluded that her injuries were consistent with the road traffic accident. He advised the appellant to restrict her future activities to those not involving significant bending or lifting. 41 In a report dated 30 September 2002 Dr Mahony assessed the appellant's permanent disabilities after deducting an amount for pre-existing degenerative changes: 15% permanent impairment of the neck as I would consider she could develop further neck symptoms in the future

15% permanent loss of efficient use of the left lower limb at and above the knee to include impairment below the knee.

42 Dr Berry is a specialist general surgeon and medico-legal consultant. He examined the appellant on 9 November 2000, when she was "obviously pregnant", and on 9 August 2001. Dr Berry's opinion was: This patient has a history of being in a rear end motor vehicle accident in March 1999. At the time when I first saw her she was pregnant which made it difficult to assess her situation. She has now had a normal delivery; she suffers worsening neck pain and ongoing back pain. Her radiology at this stage shows no major bony or disc lesion. She has no evidence of radiculopathy in the upper or lower limbs, I doubt that an MRI Scan is going to show much in the way of significant pathology. I would remain of the opinion that this patient has had musculo-ligamentous injuries of the Whiplash type to the cervical and lumbar spine as a direct consequence of her motor vehicle accident.

On the basis of today's examination this patient is fit for activities which do not require sudden turning and twisting movements of the neck, heavy lifting and repetitive bending. Her prognosis is guarded as she is still symptomatic. Her injuries are of the soft tissue type and they should gradually subside but it may take another 12 to 18 months for this to happen. Thereafter she may be subjected to intermittent discomfort from time to time. At the present time her treatment should consist of simple analgesics for the pain when it troubles her and physiotherapy and other conservative modalities should be reserved for any flare ups in her condition.

43 The opinion of the respondent's medical expert has already been referred to. It accepts the linkage between the accident and the worsening neck pain as reported by the appellant in September 2002. It notes that the appellant was also reporting lower back pain and migraines at that time. Dr Thompson's assessment of the impairment of the cervical spine at 5% when compared to a most extreme case suggests a permanent condition. Of course, this does not translate into an opinion supporting the view that non-economic loss is in the same range. 44 It is unnecessary in the circumstances to consider the issue raised by the appellant as to the judge's refusal to permit reliance upon the late-served medical report of Dr Wallace. 45 In my view, this body of medical evidence precludes the Court from being satisfied on the material before it that the damages likely to be awarded will be less than $27,300. It seems to me that there is a more than negligible prospect of some award for economic loss, perhaps framed by way of a cushion. There is also evidence of past and future expenses for medical treatment, physiotherapy, hydrotherapy, remedial massage and provision of a lumbar support (Blue 50Q). The sums involved are not quantified but they would not be neglible. 46 The appellant would come to within $300 of the monetary threshold required by s43A if the non-economic loss component, standing alone, put her in the category of 27% of a most extreme case or higher. She is a young woman (presently in her mid thirties). There has been a significant level of pain since early 2000 and the likely prognosis appears to be one that involves permanent impairment assessed at various levels by Drs Mahony and Thompson. I do not intend to preempt what may emerge on a fuller investigation at trial, but I am unpersuaded on this material that the threshold is unlikely to be crossed. 47 I propose the following orders:

2. Subject to the filing of a notice of appeal, appeal upheld.

3. Set aside the orders made by Karpin DCJ on 17 December 2002. In lieu thereof order that the defendant's application be dismissed with costs.

4. Respondent to pay appellant's costs of the proceedings in the Court of Appeal and to have a certificate under the Suitors' Fund Act 1951 if qualified. 48 TOBIAS JA: I agree with Mason P. 49 FOSTER AJA: I agree with Mason P.

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