Rushton v Fehoko

Evidence overview

1. The evidence relied upon at the hearing of the motion was in the form of affidavits that were tendered without objection or cross-examination. The plaintiff relied upon his own two affidavits which were respectively sworn on 19 June 2018 and 29 August 2018, as well as an affidavit from his solicitor, Ms Eunice Puh-Keen Lee, sworn on 20 June 2018. The defendant called no evidence on the motion.
2. The motion was heard in short form in a busy motions list on 21 September 2018. Pending the availability of a back-ordered transcript of the argument presented at hearing, and absent the earlier availability of a written outline of argument, by order, on 25 September 2018, the plaintiff's legal representatives forwarded a chronology of relevant events.

Issues for determination

1. At the commencement of the hearing of the motion, the defendant resisted all the elements of the plaintiff's application for the relief claimed pursuant to s 109 of the MAC Act.
2. However, during the course of the hearing, the defendant ultimately conceded that for the purposes of determining this motion, the plaintiff would satisfy the 25 per cent quantum threshold required by s 109(3)(b) of the MAC Act.
3. The defendant did not seek to argue that the defence position in the litigation was adversely affected by any significant prejudice beyond the presumptive prejudice that is generally associated with contested litigation. In light of the liability and damages materials in the possession of the defendant, as disclosed in the evidence, it would have been very difficult for the defendant to maintain that there was significant prejudice in this case.
4. Accordingly, the only remaining issue calling for decision in this motion concerns whether, on the evidence adduced, the plaintiff has provided a full and satisfactory explanation for the delay in commencing these proceedings in relation to the subject accident: Walker v Howard [2009] NSWCA 408.
5. The discrete point ultimately argued by the defendant was that the plaintiff's evidence fell short of providing a full and satisfactory explanation for the delay incurred in filing his proceedings because, relevant to explaining the delay, "the acts and omissions of all relevant persons" were not canvassed in the evidence on this application, in that no evidence was provided by the plaintiff's former legal advisors: Walker v Howard [2009] NSWCA 408, at [106]. This raised the question of whether the plaintiff's previous lawyers, who had acted for him in relation to his rights for family provision, were relevant persons.
6. In contrast to the defendant's position, the plaintiff argued that the authority relied upon by the defendant was factually distinguishable from the present case, because the plaintiff's previous lawyers were not relevant persons in the present context.
7. After setting out the relevant factual background, in my consideration, I will identify my reasons for not accepting the defendant's submissions as cited.

Facts relevant to the exercise of the discretion

1. The plaintiff, a roofing tiler, was born in 1988. At the time of his father's death on 14 January 2013, he was aged 24 years. He is now aged 30 years.
2. Initially, following his father's death, the plaintiff was concerned to establish what had happened in the accident. He stated, and I accept, as it remained unchallenged, that at the time of his father's death, and until about 3 May 2017, when he consulted his present solicitor, he was unfamiliar with the procedures for making a claim for damages and he was unaware that there was a prescribed period for lodging a claim.
3. The plaintiff's unawareness in that regard existed in the circumstances where he did not have any initial perception that he had sustained a psychological injury. The fact of such an injury did not become known to him until years later, when he sought medical help because he came to realise he had nihilistic thoughts and he was consuming excessive amounts of alcohol. He did not initially make a connection between those matters and the death of his father until about 9 November 2016, when he saw his general practitioner about those matters, including his poor sleep, and his general preoccupation with the death of his father.
4. In December 2016 the plaintiff consulted a counsellor in relation to his father's death: Affidavit 19 June 2018, par 10. This did not assist him and he did not persist with that contact.
5. In early 2013, the plaintiff had consulted a solicitor, Mr Malcolm Murray, in relation to matters concerning his late father's estate: Affidavit 19 June 2018, par 12 and par 13. That evidence was unchallenged. There is no evidence to suggest that Mr Murray was either asked for, or had nevertheless provided, advice to the plaintiff regarding any possible avenues of legal redress he might have had against the present defendant in relation to the death of his father. The plaintiff's unchallenged evidence on this topic was not inherently or glaringly improbable. There is no suggestion of any criticism of Mr Murray or the counsel whom he had briefed in those circumstances.
6. In the period between January 2013 and November 2015 the plaintiff was consumed with legal matters to do with his father's estate. Mr Murray was only retained to act for him in relation to a family provision claim. The retainer was limited to that specific claim, and not in relation to a claim for personal injury damages. Counsel's fee disclosure confirms that fact: Exhibit "EL 1", Tab 15.
7. In that period, the plaintiff was aware that there was a pending WorkCover prosecution and an incomplete Coronial Inquiry relating to his father's death. Those outstanding matters were a significant source of distress and frustration for the plaintiff.
8. In those events, the plaintiff had some intermittent contact with various police and WorkCover personnel, but throughout, he remained unaware that he was entitled to bring a claim for damages in respect of his father's death. His evidence to that effect remained unchallenged. The evidence in that regard was not inherently improbable.
9. Over the course of time the plaintiff became increasingly dissatisfied with the manner in which the WorkCover prosecution had proceeded to the point where there was an adjournment of those proceedings on 30 November 2015.
10. He ruminated about those circumstances for some time, and on 20 April 2017, he made contact with his present solicitors for the purpose of enquiring about making a complaint concerning the actions of the investigating police and the WorkCover personnel involved in those proceedings. He wanted to pursue a complaint against those public authorities of which he was critical in relation to the investigation of his father's death.
11. In those events, on 3 May 2017, the plaintiff's present solicitor informed him of the possibility of him making a claim against the defendant for damages for his own personal injury.
12. Thereafter, on 9 May 2017, he attended a conference with his present solicitor, at which time the Personal Injury Form that was required under the prevailing third party damages scheme was completed.
13. Over the ensuing months, formal statements were obtained from the plaintiff aimed at advancing the present claim. The progress of that process was obviously adversely influenced by the plaintiff's psychological condition, which involved him experiencing feelings of anger, depression, an amotivational attitude to day-to-day tasks, including his work as a roof tiler, and self-neglect. He also experienced changes in his personality, and in his manner of transacting day-to-day tasks. In light of the medical evidence, for present purposes, those matters should be seen as being accident-related disabilities that affect the plaintiff.
14. In those events, on account of the plaintiff's psychological condition, he lost the ability to maintain business relationships. His tiling business failed and it was placed into liquidation. These were all obviously matters that preoccupied and distracted the plaintiff.
15. The plaintiff had a pervading lack of motivation to continue his business. He continued to feel frustrated and consumed with his father's death and with the cause of his death. Consequently, his economic circumstances became much reduced. All of those matters seem to have operated as significant stressors for the plaintiff.
16. In those events, it is relevant to review the sequence of factual events that unfolded once the plaintiff's present solicitors were retained.
17. On 9 May 2017, the plaintiff's solicitor wrote to the defendant's insurer, QBE Insurance (Australia) Limited, enclosing the plaintiff's completed Personal Injury Claim Form, an accompanying medical certificate, and the plaintiff's statement in which he proffered a "Full and Satisfactory Explanation" for the delay in bringing this claim: Exhibit "EL 1", Tab 1.
18. On 14 May 2017, the insurer rejected the plaintiff's explanation, asserting that it was neither full nor satisfactory: Tab 2. At that time, the insurer gave no further reasons for that rejection.
19. On 29 May 2017, the defendant's solicitors invited the plaintiff to an informal settlement conference, but that conference was postponed, and on 12 July 2017, the insurer advised it was still continuing its investigations.
20. In the ensuing delay, the plaintiff's solicitor set about obtaining medical evidence and liability evidence from the police, and from WorkCover. The plaintiff also attended a specialist medical examination with a psychiatrist as arranged by his own solicitor, and the defendant's solicitors.
21. In that process, the plaintiff's solicitor encountered delays in obtaining information that was being requested from public authorities pursuant to the Government Information (Public Access) Act 2009.
22. The insurer continued its stance of rejecting the completeness and satisfactoriness of the plaintiff's proffered explanations for the delay incurred in bringing his claim. However, without prejudice to that stance, the insurer through its solicitors, also sought particulars of the plaintiff's claim and appointed an expert psychiatric medical examination of the plaintiff.
23. By 7 August 2017, the insurer was already in possession of an expert engineering report on liability issues, the police report of death to the coroner, a WorkCover fatality inspection report, a police incident report and a transcript of WorkCover prosecution proceedings: Exhibit "EL 1", Tab 13. Those circumstances tend to negative the existence of any significant prejudice affecting the insurer.
24. On 10 November 2017, at the request of his solicitor, the plaintiff was examined by Dr Stephen Allnutt, a consultant psychiatrist. Dr Allnutt's comprehensive medico-legal report which followed that examination, forms part of Exhibit "EL 1" at Tab 22. Dr Allnutt's report (at p 3), records the following summary of the plaintiff's subjective view of relevant events: "He had increased his alcohol consumption from the time of the index injury because he was "miserable" at the time and continued to drink heavily until six months ago, when he was drinking six or seven standard drinks a day, to a point of "obliteration". He had increased his cocaine consumption along with his drinking, and was using cocaine three to four days a week until about a year ago. He now used it infrequently."
25. In his report, Dr Allnutt identified the plaintiff's psychological problems as manifesting a constellation of anxiety and depressive symptoms, with irritable mood, reduced energy, poor motivation, disturbed sleep, loss of interest in activities, ambivalence in decision making, poor concentration, anhedonia, nihilistic thinking, panic attacks, flashbacks, distress on speaking or being reminded of the incident and tendency to procrastinate. He made the diagnosis of the plaintiff having chronic depressive disorder with associated post-traumatic stress, with the subject accident being the substantial contributory factor: Exhibit "EL 1", pp 3, 6 and 7.
26. Contemporaneous with Dr Allnutt's opinion, on 14 November 2017, at the request of the defendant's solicitor, the plaintiff was examined by Dr Andrew McClure, a consultant psychiatrist. The defendant has not served any resultant report from Dr McClure on the plaintiff's solicitor.
27. The defendant's insurer, through its solicitors, continued to deny liability for the plaintiff's claim for damages: Tab 10. That denial, and the insurer's rejection of the plaintiff's explanations for the incurred delay were set out in correspondence: Exhibit "EL 1", Tab 11. That correspondence from the defendant's side sought to criticise some asserted shortcomings in the information available within the identified materials concerning a number of topics. Those assertions by the defendant provided the basis for arguments that were not relied upon at the hearing.
28. Those matters included the timing of the plaintiff's first awareness of his condition, the details of his attendance on a counsellor in late 2016, the identity of the barrister the plaintiff had retained for the estate claim, and details of the retainer of that barrister and his instructing solicitor. The insurer sought to pursue details of the dates of the plaintiff's various appointments with police, WorkCover officials, and with the coroner. The insurer also sought details as to why the plaintiff had eventually made contact with his present solicitors: Exhibit "EL 1", Tab 11. Some of those matters bore the hallmarks of what is sometimes described in litigation as a fishing expedition.
29. The plaintiff's solicitor proceeded to attend to the matters raised by the defendant. This included supplying the plaintiff's medical records, the records relating to the counselling the plaintiff had received, economic loss related material, supplying a supplementary statement from the plaintiff dated 15 September 2017, which identified the retainer of his former lawyers in relation to the estate claim, and the provision of Dr Allnutt's report: Exhibit "EL 1", Tabs 15 - 26.
30. In the subsequent steps taken by the plaintiff's solicitor, events moved relatively swiftly. On 18 August 2017, the plaintiff's solicitor had arranged a conference with counsel. This took place on 6 September 2017. On 11 September 2017, counsel recommended commencement of the present proceedings.
31. On 26 October 2017 the State Insurance Regulatory Authority issued a Certificate of Exemption to the plaintiff which permitted the commencement of proceedings: Exhibit "EL 1", Tab 17.
32. Between that date and the filing of the plaintiff's statement of claim on 15 December 2017, appropriate investigations and preparation were undertaken by the plaintiff's solicitor, including the despatch of a letter dated 14 December 2017 to the solicitor for the defendant providing particulars in answer to a request dated 4 August 2017: Exhibit "EL 1", Tabs 12 and 19.
33. On 6 March 2018, which was 3 months after the plaintiff's statement of claim was filed, the defendant's solicitor filed a defence. That defence raised the issue of the plaintiff's need to obtain leave to proceed pursuant to s 109 of the MAC Act. Accordingly, on 23 March 2018, the plaintiff's present notice of motion was filed. There were no relevant delays requiring explanation from that time.
34. I now turn to the consideration of the above factual circumstances in light of the principles to be applied in such cases.

Consideration

1. In this case, on the narrowed issues that have been identified, in order to obtain the leave to proceed that he seeks, the plaintiff must demonstrate that he has provided a full and satisfactory explanation for the delay in bringing the present claim: s 109(3)(a) of the MAC Act.
2. A full and satisfactory explanation must comprise a full account of the plaintiff's conduct, actions, knowledge and belief from the time of the accident to the time of the explanation. In that regard, an explanation is not to be regarded as satisfactory unless a reasonable person in the position of the plaintiff would have failed to bring the claim within the prescribed time, or would have been justified in experiencing the same delay as that experienced by the plaintiff: s 66(2) of the MAC Act.
3. In my assessment, the plaintiff has satisfied all of those requirements such that his explanation for the delay that he has incurred in this case should be regarded as being both full and satisfactory.
4. I consider that the present case is plainly distinguishable from the facts that based the consideration in Walker v Howard [2009] NSWCA 408, at [109].
5. This is because although it is a given that all relevant persons must give an account of their actions or omissions in the chronology of events leading to the application, I find that in this context, on the evidence, the plaintiff's former lawyers, are not relevant persons.
6. That must be so in this case because the plaintiff's evidence as to their role, which had nothing to do with the present claim, was not challenged. It was therefore not necessary for the plaintiff to call confirmatory evidence from his former lawyers where his evidence on this topic is capable of acceptance without the need for corroboration.
7. Absent a challenge to the plaintiff's evidence on that topic, obtaining evidence from the lawyers who represented him in the family provisions matter would have been a superfluous exercise.
8. That conclusion necessarily arises because there is no evidence that the plaintiff's former lawyers had been retained to advise him in relation to any personal injury damages claim arising from the death of his father. The plaintiff's unchallenged and not otherwise improbable evidence was that he had only consulted them for matters to do with his father's will and estate.
9. The conclusion on that question may have been different if there had been factual evidence to suggest that those former lawyers also had a retainer to advise the plaintiff on the potential for him to bring a damages claim in respect of the death of his father.
10. On the ultimate issue as identified at paragraph [11] above, I therefore find that the plaintiff's explanation for the delay he has encountered in this case is both full and satisfactory. In that regard, not only was the plaintiff unaware of his rights until 3 May 2017, but he was also affected by an identified psychological illness comprising depression and post-traumatic stress.
11. I find that a reasonable person in the position of the plaintiff, as so described would have experienced a similar delay in bringing proceedings, and such a person would have been justified in experiencing the same delay that has been experienced by the plaintiff: s 66(2) of the MAC Act. I conclude the plaintiff is entitled to the leave he seeks to extend the time for commencing his proceedings which were otherwise commenced out of time.

Disposition

1. The plaintiff has satisfied the requirements for the exercise of discretion to grant the leave to proceed that he seeks in this notice of motion.

Costs

1. At the hearing of the motion on 21 September 2018, an order was made for the plaintiff to provide a factual chronology cross-referenced to the relevant documents within 14 days. A further order was made for each party to provide any submissions they wanted to make on costs within 14 days.
2. By 5 October 2018, the plaintiff's representatives had complied with those orders. The defendant's representatives did not provide any costs submissions within that time frame.
3. On 18 October 2018, by an administrative communication, the Court advised the parties that the time for submissions had closed, and that the matter would shortly proceed to judgment.
4. As a result of that communication, subsequently, later on the same day, the defendant made an application, on the papers, for leave to make costs submissions although out of time. In that application, the defendant's solicitor explained that on 21 September 2018, the defendant's representatives had failed to note the terms and time limits in the order for costs submissions.
5. On 22 October 2018, in light of that application by the defendant for leave, the plaintiff's legal representatives indicated that there was no objection to the defendant's costs submissions being provided and considered, although out of time.
6. The defendant's costs submission was that there was a usual presumption that the party seeking the leave of the Court ought to pay the costs of the opposing party because the issue of whether or not leave should be granted, was a matter that must be brought before the Court for determination.
7. The defendant's costs submissions went on to argue that the defendant had made appropriate concessions that enabled the matter to proceed as efficiently as possible, and the plaintiff at all times carried the onus of satisfying the requirement of providing a full and satisfactory explanation as justification for the exercise of the discretion sought.
8. Accordingly, the defendant argued that the plaintiff should pay the defendant's costs of the motion, or alternatively, each party should bear their own costs of the motion. For the reasons that follow, I do not accept the defendant's costs submissions.
9. First, in modern litigation conducted under the regime of the Civil Procedure Act 2005, there are no fixed or settled rules for making orders for costs on applications requiring the exercise of discretion: s 98(1) of the Civil Procedure Act 2005. The exercise of a discretion to award costs must be dependent upon the facts of the particular case: Holt v Wynter [2000] NSWCA 895, at [104].
10. Secondly, the defendant's costs submissions are based on an incorrect premise that there is a "usual presumption" concerning the seeking of an indulgence. That position is no longer applicable since the advent of the costs regime contemplated by the Civil Procedure Act 2005.
11. Thirdly, the determination of the costs consequences of the litigation is a discretionary matter that is not necessarily or automatically based on presumptive considerations: s 98(1) of the Civil Procedure Act 2005.
12. Fourthly, the concessions made at the hearing by the defendant that facilitated efficiency that the defendant now relies upon on the costs question, were plainly appropriate to the factual circumstances. Those concessions could have been made shortly after the plaintiff's motion and the supporting and unchallenged evidence was served on the defendant: s 56 of the Civil Procedure Act 2005.
13. In that latter circumstance, the defendant had an ample opportunity to consider the likelihood of the plaintiff obtaining the leave he sought in this application. The defendant had a similar opportunity at that time to consent to the plaintiff's application if so minded, in which case the Court would have readily made orders sought by consent, administratively, with minimal costs incurred, and without incurring the cost of a listing fixture.
14. Instead, the defendant left the consideration of the question of whether leave should be granted to the Court in a case which was compelling for the grant of the leave sought. This is not a case where the plaintiff seeks an indulgence as to the expiry of a limitation period based on a changed view of his circumstances where a limitation period was consciously permitted to lapse.
15. If the plaintiff's liability case was not compelling, or had doubtful prospects of success, the preferable costs order might be that the costs of the motion be determined in accordance with the plaintiff's costs of the proceedings: Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [149].
16. In the circumstances of this case, where the plaintiff has satisfied the required threshold after a factual contest, I consider the appropriate cost order to be that the defendant should pay the plaintiff's costs of the motion on the ordinary basis unless a party can show an entitlement to some other costs order, for which there will be liberty to apply: s 98 of the Civil Procedure Act 2005; Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [146] - [147].

Orders

1. I make the following orders: 1. Finding that the plaintiff has provided a full and satisfactory explanation for the delay in commencing these proceedings; 2. Pursuant to s 109(3) of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence proceedings although out of time in relation to mental harm and psychological illness he has suffered as a result of the death of his father in a motor vehicle accident which occurred on 14 January 2013; 3. The leave referred to in order (2) above is to commence on 15 December 2017 when the plaintiff's statement of claim was filed; 4. The defendant is to pay the plaintiff's costs of the hearing on the ordinary basis unless a party is able to show the basis for some other costs order; 5. Liberty to apply on 7 days notice if further or other orders are required.

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: 26 October 2018