Robertson v C & P Automotive Engineers Pty Limited

Factual Background

1. Mr Robertson was employed as a forklift driver. While he was so engaged at Sydney Markets, another forklift driven by Azhar Iqbal collided with the rear of his forklift whereupon Mr Robertson was thrown from the vehicle and claims to have suffered injury. Mr Robertson returned to work after two days but within a fortnight thereafter he was certified as unfit and ceased work. He contacted his present solicitor, Brydens, in the following month on 28 May 2013. He was informed of the three-year limitation period by means of a five‑page information document which Brydens sent to him. At about the same time, he informed his solicitors of Mr Iqbal's name and address and the registration numbers of both forklifts.
2. Soon thereafter, Mr Robertson departed Australia and was with his family in New Zealand, at least from October 2013. He did not receive some correspondence sent to him. In January 2014, he became aware of the obligation to lodge a claim form. That was prepared and lodged with the Nominal Defendant in April 2014.
3. It appears that Brydens overlooked the information Mr Robertson provided about the registration number of the other forklift. It was not recorded on the claim form and in May 2014, Brydens advised NRMA Insurance, the insurer allocated the matter under the Nominal Defendant scheme, that the registration number of the other forklift was unknown. Two months later, on 23 July 2014, Brydens wrote to Mr Robertson requesting the registration details of the forklift. It may be that Mr Robertson reminded his solicitors of the information he had earlier supplied for on 13 August 2014 Brydens contacted the Motor Accident Authority, supplying the registration details but was advised that the number provided was incorrect.
4. A detailed chronology of the steps taken by Brydens to advance the matter was provided in an affidavit and a statutory declaration by two solicitors and by affidavits from Mr Robertson. Mr Robertson attended medical appointments in 2015, and reports were served, WorkCover documents and police records confirming and detailing the incident were sought and received, and other steps were undertaken consistent with an apparent orderly progression of the claim.
5. The WorkCover documents indicated that Mr Iqbal was employed by Sentox Pty Ltd, and confirmed the registration details. As a result, Brydens were able to identify QBE Insurance (Australia) Limited as the CTP insurer, and on 23 October 2015 Brydens served the personal injury claim form on QBE. QBE is the insurer of C & P Automotive who is resisting the present application. Soon thereafter, Brydens lodged an Application for Exemption from the Claims Assessment and Resolution Service ("CARS") and forwarded a copy to NRMA.
6. On 26 November 2015 NRMA, in correspondence, referred to C & P Automotive as the relevant employer and although it denied liability it stated that investigations were continuing, that it was "unable to admit liability at this time" and "once we receive all of the necessary information we will reconsider our decision on liability". On the basis of the uncertain stance of NRMA, the principal claim assessor denied the CARS exemption application on 1 December 2015.
7. Brydens took no action with respect to C & P Automotive.
8. On 25 January 2016 QBE, similar to NRMA earlier, wrote to Brydens denying liability as it was "unable to admit liability"; that "investigations were ongoing" and were expected "to be completed by 28 February 2016". QBE stated that a decision on liability should be given by 14 March 2016.
9. Brydens wrote on 29 February 2016, separately to NRMA and to QBE, reminding them of the limitation period expiring on 30 March 2016 and seeking a s 81 notice admitting or denying breach of duty of care.
10. On 3 March 2016 QBE's solicitors wrote to Brydens informing Brydens of their instructions to act for QBE and on 6 April 2016, QBE's solicitors informed Brydens that Mr Iqbal, the driver of the other forklift, was deceased since late 2013, that QBE could not confirm it was the insurer at risk as the claim form provided no detail of the vehicle but that QBE's position would be reviewed if further details were provided. The next day, Brydens provided QBE's solicitors with all correspondence between Brydens and NRMA.
11. On 13 April 2016 NRMA advised "The alleged at fault forklift" had CTP Insurance with QBE and therefore denied liability. On 20 April 2016 Brydens wrote to QBE's solicitors concerning the forklift with the specified registration number and on 30 May 2016 QBE's solicitors confirmed in writing that the forklift was insured for CTP purposes at the relevant time by QBE, but otherwise denied the claim, including whether the accident happened on a road. It noted that investigations were continuing.
12. At the request of the principal claim assessor, a further CARS exemption application in respect of the QBE claim was made on 7 June 2016 and granted on 16 June 2016. This operated for a period to stop time running for the purpose of the proceedings. The claim against NRMA was dismissed. The State Insurance Regulation Authority Exemption Certificate by the principal claim assessor noted the registration of the forklift, QBE as insurer and Mr Iqbal as the driver, but did not specify the owner.
13. On 2 August 2016 Mr Robertson commenced proceedings against Sentox Pty Ltd and Sydney Markets Ltd. As time had ceased to run from 16 June 2016, the proceedings were about nine weeks out of time. Neither of the named offenders was insured with QBE. QBE's solicitors wrote on 6 September asking Brydens whether a claim was pressed against it.
14. Meanwhile, Sentox appointed solicitors to defend the claim. Those solicitors wrote to Brydens on 21 September 2016 advising that Mr Iqbal was employed by "Vegie World", a business owned by Steve Tesoriero who was said to be the owner of the forklift. Sentox was the employer of Mr Robertson. On 2 November 2016 Brydens served on Sentox's solicitors a proposed Amended Statement of Claim joining Vegie World as a party. At this stage, although QBE had accepted that it was the CTP insurer of the forklift, still it remained that no insured of QBE was a party to the proceedings. The driver, Mr Iqbal, was deceased and the registered owner, at least, had not been properly identified.
15. On 4 November 2016 QBE's solicitors wrote to Brydens confirming again that they were the "third party insurer of the forklift alleged to be at fault", and sought information about whether an appearance and defence had been filed by Sentox, who acted for Sentox, and whether a copy of any defence and an Amended Statement of Claim could be provided. It was apparent from this correspondence that QBE was aware of the orders made at a pre‑trial conference and although not a party was following closely the progress of the litigation. Obviously enough, while QBE may be "the third party insurer of the forklift", the forklift was not going to make a claim on the policy.
16. A few days later, Sentox's solicitors consented to the filing of the Amended Statement of Claim joining SA & RT Tesoriero Pty Ltd, trading as Vegie World. Sentox's solicitors continued to seek a discontinuance against Sentox. Brydens then sought further documents from Sentox's solicitors concerning Mr Iqbal's employment. Sentox's solicitors responded on 18 November 2016 indicating a belief that Mr Iqbal was employed by Vegie World, the trading name of SA & RT Tesoriero Pty Ltd, and passed on information that "The forklift being driven by Iqbal was rented by Vegie World from C & P Automotive Engineers Pty Ltd who was the owner". Sentox's solicitors also provided CCTV footage of the incident. Again the reference to C & P Automotive seems to have been overlooked by Brydens. Rather, Brydens issued subpoenas to Sentox, Sydney Markets Ltd, SA & RT Tesoriero Pty Ltd trading as Vegie World and WorkCover NSW. Proceedings were discontinued against Sentox. The Amended Statement of Claim was filed on 24 February 2017 removing Sentox as a party and joining SA & RT Tesoriero Pty Ltd trading as Vegie World as the employer of Mr Iqbal.
17. There followed a substantial period where nothing is evidenced to have occurred. Mr Robertson was overseas as he had been for much of the past four years. In 2017 he was in the Philippines with his estranged wife and child. No communications between Brydens and QBE or their solicitors took place from November 2016 until October 2017.
18. In September 2017 a Second Amended Statement of Claim making some minor amendments was filed. By 17 October 2017, Brydens appear to have recognised the possible significance of the repeated references to C & P Automotive including one identifying it as the owner of the relevant forklift. Brydens issued subpoenas to QBE and C & P Automotive. The subpoenaed documents were not received by Brydens until 31 January 2018. The documents confirmed that C & P Automotive was the registered owner of the forklift, that C & P Automotive had CTP insurance on the forklift with QBE, and that the forklift was hired to Robert Tesoriero on a weekly or monthly basis for a little over five months as at the time of the accident.
19. On 23 April 2018 a Third Amended Statement of Claim was filed and served joining C & P Automotive, Robert Tesoriero and BT Employees Ltd. These three parties were joined because of some perceived uncertainty about ownership: C & P Automotive was the registered owner who had taken out CTP insurance with QBE; BT Employees were believed to be the employer of Mr Iqbal and perhaps the owner of the forklift; and Mr Tesoriero had leased the vehicle and lent it to Mr Iqbal for use.
20. I should note that there was no dispute before me that the time limitation on the entitlement "to commence proceedings" under s 109 is applicable not just to the commencement of proceedings simpliciter but is also applicable to joining a new party, in this case, C & P Automotive. Under the Uniform Civil Procedure Rules 2005, the date of joinder of a party is generally to be regarded as the date of commencing proceedings against that party. [3] In this regard, Mr Robertson at first faintly argued then appeared to abandon the argument that the joinder of C & P Automotive was in substitution of a party, [4] or arose from a mistake in the name of a party, circumstances which might operate to backdate the date of commencement. The abandonment was in part because s 65 of the Civil Procedure Act 2005 - which deals with mistakes in the name of a party - only applies to proceedings commenced within the limitation period, which was not the case here.
21. On 11 December 2018 C & P Automotive filed a defence admitting to registered ownership of the relevant forklift, 17329D, but denying ownership under s 4 of the Motor Accidents Compensation Act 1999. That provision defines the owner as, in summary, the person entitled to immediate possession although the hiring and lending of a vehicle for less than three months does not cause a change of possession. C & P Automotive otherwise denied the claim and pleaded additional defences of contributory negligence and a limitation defence based on s 109.
22. On 15 January 2019 QBE's solicitors wrote informing Brydens that QBE and its insured, C & P Automotive, accepted that the accident occurred on a road, that C & P Automotive was the owner of the forklift, 17329D, at the relevant time, that C & P Automotive was liable for the actions of the deceased, Mr Iqbal, in respect of his driving of the forklift and that Mr Iqbal was negligent in his driving of the forklift leading to the collision with Mr Robertson.
23. QBE's solicitors acting for C & P Automotive then filed an Amended Defence on 26 February 2019 making amendments to reflect the concession made in the January correspondence. In the result, the only liability issues remaining in Mr Robertson's action against C & P Automotive were the existence of damage, contributory negligence, and the s 109 limitation point.

Analysis

1. It is apparent that once QBE had admitted it was "the insurer of the forklift" there were steps that could have been taken by Brydens in late 2016 or 2017 to ensure that QBE was involved in the proceedings, either by asking QBE to supply the identity of its insured, or by issuing a subpoena to it on that subject matter somewhat earlier than late 2017, or by taking steps to join QBE as the insurer of the vehicle if the owner was unknown. None of these steps were taken. The possible joinder of QBE directly is perhaps irrelevant to this application, which is concerned with the delay in joining C & P Automotive as a party, that is, the delay in commencing proceedings against C & P Automotive. Although QBE accepted from 30 May 2016, shortly after the three-year period had expired, that it was the CTP insurer of the forklift, it took no steps to inform Brydens of its insured. Yet this is not a complete answer to Brydens' delays.
2. On the other hand, there may have been good reasons why until 15 January 2019 Brydens remained uncertain about the ownership of the forklift, reasons which are supported by the circumstance that QBE, in its initial defence, denied ownership.
3. Some remarks of the Court of Appeal in Smith v Grant [5] seem applicable here. The Court said: "32 This submission appeared to assume, perhaps unnecessarily, that the Court would be required to make a judgment as to the solicitor's conduct. No doubt it may be possible to infer from the lack of any substantial explanation, that the solicitor was dilatory, and possibly negligent. However, such an inference would not be drawn unless the occasion for explanation by the solicitor had arisen. On one view, it had not: what was required was a full account of the 'conduct, including the actions, knowledge and belief of the claimant', and not that of her solicitor. Nor should the two limbs of the definition contained in s 66(2) be taken in isolation from each other. Thus, the test of whether an explanation is satisfactory, requires consideration of whether 'a reasonable person in the position of the claimant … would have been justified in experiencing the same delay'. That would appear to view the matter from the position of the claimant, and not the claimant's solicitor. Accordingly what is relevant is any explanation given by the solicitor to the claimant, or, in the absence of explanation, a delay of a kind which might induce a reasonable person in the position of the claimant to seek an explanation. 33 As noted above, the insurer contended that the conduct of a claimant must be taken to include the conduct of her authorised agent, namely the solicitor. To an extent that contention should be accepted. Thus the claimant seeks to rely upon steps taken by her solicitor and, indeed, his omissions. Those are objectively identifiable matters which may form part of a full explanation. However, for reasons given below, it does not follow that an assessment of whether the explanation is satisfactory or not, requires any normative judgment about the conduct of the solicitor: see [60]. That being so, it follows that an explanation may be a 'full explanation' without exploring the blameworthiness, or otherwise, of the solicitor." [6]
4. Accordingly, the focus must be on Mr Robertson. Is he to bear responsibility for any unreasonable delays occasioned by Brydens' conduct? Mr Robertson knew that proceedings had to be commenced within three years and, in fact, they were commenced nine weeks outside that period. But there is no basis to suggest that any conduct of Mr Robertson was causative of a delay in meeting that time limit. Mr Robertson's overseas journeys in 2013 seemed only to have caused some delay in service of the initial claim form, but that is not an issue in the present application.
5. The more substantial period of delay occurred between the commencement of proceedings and when C & P Automotive was joined as a defendant. This delay was due to uncertainty about the parties and ownership of the forklift. These are largely technical legal questions. There was nothing Mr Robertson could contribute to the resolution of these issues and no suggestion was made that any conduct of his contributed to that delay.
6. In Smith v Grant at [60], [7] the Court of Appeal held that: "the weight of authority...in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors although it was negligent, such reliance could provide a satisfactory explanation for delay in commencing proceedings."
7. Mr Robertson could reasonably rely on the conduct and advice of his solicitors especially in respect of the joinder of parties. His explanation, accordingly, was satisfactory because the reasonable person in his position would have been justified in experiencing the same delay.
8. C & P Automotive submitted that Mr Robertson had not given details about his overseas trips. So much must be accepted. But those trips only need to be included in his explanation if they were causally related to the delay. While Mr Robertson's absence overseas contributed to a delay in the preparation of the initial claim form, as I indicated, this was not an issue before me. There is no evidence to suggest that Mr Robertson's absence from Australia played any role to the delay in commencing proceedings by 30 March 2016. Evidence of Mr Robertson's explanation for being overseas and the precise periods when or the places where he went would be otiose.
9. C & P Automotive also submitted that the negligence of Brydens was so great that Mr Robertson was tainted by it. In my view, this submission overlooks the obligations imposed by ss 66 and 109 of the Motor Accidents Compensation Act 1999 as explained by the Court of Appeal in Smith v Grant in the passages quoted earlier. The Court of Appeal in Smith v Grant also stated: "The insurer was critical in certain respects of the conduct of the claimant's solicitor. The actions of the solicitor were undoubtedly a relevant part of the explanation for the delay. However, there is nothing in the language of s 66(2) which directly requires that the conduct of the solicitor be 'justified'. Indirectly, the solicitor's conduct may be called into question to the extent that it is relevant to determining whether a reasonable person in the position of the claimant would have been justified in experiencing the delay. However, it was not necessary for the claimant to anticipate each criticism which might have been made of her solicitor and identify what her state of knowledge or belief was in relation to his compliance with standards of diligence which might be applicable to him. Her account, which included the material contained in her solicitor's affidavits, is properly described as a 'full account' without her having undertaken that task. If the insurer wished to demonstrate that a reasonable person in her position would have questioned her solicitor about aspects of the delay, or sought other advice, those matters could have been put to her in cross-examination. However, the insurer did not cross-examine either her or her solicitor." [8]
10. The same position occurred in this application where neither Mr Robertson nor his solicitor were cross‑examined. Although C & P Automotive identified several matters which were left unexplained or lacking in detail or specificity in the evidence, none of them appeared to be of any significance in the delay. The words "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" [9] is in relation to an "explanation...for delay" and must be read as referring to those matters that are needed to explain the delay. There is no utility or necessity in Mr Robertson recounting every event that occurred to him over the six-year period.
11. Further, a reasonable person in Mr Robertson's position would be entitled to rely on his solicitors expeditiously to sort out the question of the proper parties to the proceedings. That being so, such a person would have been justified in experiencing the same delay.
12. In my view, Mr Robertson has given a full and satisfactory explanation for the delay. He was entitled to rely upon his solicitors to sue the correct parties and to identify the correct owner of the forklift and he did so. At a very early date, he gave his solicitors the correct registration details of the relevant forklift.
13. Who is, in fact, the true owner of the forklift will not be determined in this application, nor at any trial. QBE and C & P Automotive have accepted ownership for the purposes of these proceedings. Whether the correct owner was in fact C & P Automotive or another party joined on 23 April 2018, or SA and RT Tesoriero who was joined on 24 February 2017 is a matter that is not certain and need not be determined in these proceedings.
14. A full and satisfactory explanation for the delay might not always be a sufficient basis for leave to be granted, for instance, in circumstances where a fair trial has been prejudiced by a delay that may have been fully and satisfactorily explained. But in this case, there is no suggestion that prejudice has occurred. QBE was given notice of the claim more than five months prior to the expiration of the limitation period. Soon thereafter they were informed of the particular forklift of which they were the CTP insurer. Although Mr Iqbal is deceased, his death occurred about nine months after the incident so an earlier commencement of proceedings would not have enabled further evidence to be obtained from him. The parties have been favoured with the CCTV recording of the incident.
15. Thus, no prejudice from the delay can be seen. QBE expressly disavowed any prejudice. The absence of prejudice on liability questions is indicated by the defence of C & P Automotive which admits a breach of duty.
16. In all the circumstances, leave to commence proceedings outside of the three-year limitation period should be granted.

Orders

1. The orders of the Court are: 1. Leave granted to the claimant under s 109 of the Motor Accidents Compensation Act 1999 to commence proceedings more than three years after the date of the motor accident. 2. Costs reserved. 3. Any application in respect of costs be served and a copy provided to my associate by 12 July 2019 with an indication of available dates. 4. List the matter for directions on Thursday, 4 July 2019 at 10am before the Judicial Registrar.

Endnotes

1. Motor Accidents Compensation Act 1999, s 66(2).
2. Motor Accidents Compensation Act 1999, s 66(2).
3. See Ritchie's at [6.28.5] and r 6.28.
4. UCPR 6.32(1)(d) and Ritchie's at [6.32.10].
5. (2006) 67 NSWLR 735; [2006] NSWCA 244.
6. At [32]-[33].
7. See [1] and [2].
8. At [74].
9. Motor Accidents Compensation Act 1999, s 66(2). 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: 14 August 2019