Said Mohajid Adilzada by his next friend Said Taqee Adilzada v The Nominal Defendant

Background to the Application 9Following the accident, in February 2008, the plaintiff's father sought the assistance of the Griffith Migrant Settlement Services. Ms Margaret King, the Settlement Services Co-ordinator, assisted Jawid by submitting a personal injury compensation claim form (exhibit D) to NRMA Insurance Limited, the authorised third party insurer of the plaintiff's vehicle. The claim form contained a description of the accident that included a reference to an oncoming truck. By letter dated 1 December 2009 NRMA issued a notice pursuant to s 81 of MACA denying liability. The reason for that insurer's decision was as follows: "Insured driver has advised that he was forced off the road by an 'unidentified truck'." The insurer went on to recommend that Jawid lodge a claim against the Nominal Defendant. 10On 11 January 2010 the plaintiff provided instructions to solicitors based in Adelaide, Messrs Vaezi & Partners. Those solicitors corresponded with NRMA, Allianz Insurance (on behalf of the Nominal Defendant) and the Claims Assessment and Resolution Service (CARS). 11The time for bringing the plaintiff's claim expired on 18 October 2010. On the same date Allianz wrote to the plaintiff's solicitors rejecting the plaintiff's explanation for the delay in respect of his late lodgement of a claim form against the Nominal Defendant, pursuant to s 73 of MACA. 12On 15 November 2010 the plaintiff's solicitors were advised that the Motor Accidents Authority had referred the matter to a CARS assessor and that a preliminary conference would take place on 30 November 2010. 13By early 2011 the plaintiff was living with his family in Melbourne. On 5 February 2011 the plaintiff instructed Paramount Lawyers, of whom Mr Jason Di Michiel is a partner, to act on his behalf. 14Thereafter, the plaintiff's solicitor attended to preparing the plaintiff's claim expeditiously up until 25 July 2011 when a Statement of Claim and Statement of Particulars were filed in the District Court on behalf of the plaintiff. However, a Certificate of Exemption had been issued by CARS on 18 February 2011, and due to an oversight the Statement of Claim was not filed within two months, as required by MACA.

Relevant Legislative Provisions 15Section 73 of MACA provides that a claim must be made within six months after the date of the accident. If, however, a claim is made more than six months after the date of an accident, a full and satisfactory explanation for the delay in making the claim must be provided. 16Section 109 of MACA provides relevantly as follows: "109 (1) A claimant is not entitled to commence proceedings in respect of the claim more than three years after: (a) The date of the motor accident to which the claim relates, or ... except with the leave of the court in which the proceedings are to be taken. (3) The leave of the Court must not be granted unless: (a) The claimant provides a full and satisfactory explanation to the Court for the delay, and (b) The total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for noneconomic loss under s 134 as at the date of the relevant motor accident." 17The operation of s 109 is governed by the definition of a "full and satisfactory explanation" contained in s 66 (2) as follows: "66 (2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant who have complied with the duty or would have been justified in experiencing the same delays." 18On this application the defendant has conceded that the plaintiff's damages are such that s 109(1)(3)(b) is satisfied. The question is whether the claimant has provided a full and satisfactory explanation to the Court for the delay in commencing proceedings. As set out above, that involves a full account of the conduct of the plaintiff, including his actions, knowledge and belief from the date of the accident until the date of providing the explanation. The test is an objective one, determined by whether a reasonable person in the position of the claimant would have been justified in experiencing the same delays - (See Walker v Howard [2009] NSWCA 408). It is clear that the explanation must be both "full" and "satisfactory".

Further Evidence 19Said Taqee Adilzada was cross-examined on his affidavit. The following summary of the evidence is prepared without the benefit of a transcript. Said Taqee is the father of both Said Mohajid and Said Jawid and he confirmed that Mohajid had been discharged from hospital in November 2007 and transferred to Albury Hospital for one week's rehabilitation. 20In December 2007 Mohajid had been sent to Pakistan to be cared for by family, where he remained until June 2008. Following his return to Australia, he returned to live with the family in Griffith and returned to work as a chicken boner. He ceased that work at the end of October 2008. During the time he worked, Mohajid would travel to work with his brother who worked at the same factory. 21In February 2009 Mohajid returned to Pakistan. On his return from overseas he lived with his elder brother John in Shepparton. John was trying to help him become independent. They moved to Adelaide in May 2009 and remained in Adelaide until May 2010, when the family moved to Melbourne. 22Mr Adilzada was told by Mohajid in the hospital what happened in the accident. Following his son's discharge from hospital he sought help from Migrant Services in Griffith. Margaret King assisted them in making a claim on behalf of Jawid, against the CTP insurer of Mohajid's vehicle NRMA Insurance Limited. 23Mr Adilzada was asked whether he had spoken to Mrs King about making a claim on behalf of Mohajid, but he said that at no stage did he speak to her about the possibility of making a claim against the insurance company on behalf of Mohajid. 24He confirmed that on 4 February 2010 he instructed Vaezi & Partners on behalf of his sons. He became dissatisfied with that firm. When asked what he did to satisfy himself that his sons' claims were being pursued by that firm he said the solicitor responsible had said to him "Your sons' cases are in progress". He said that he trusted the lawyer. 25Mr Adilzada said that his son Mohajid had been to Pakistan three times since the accident. On the last occasion the family went as a result of his brother being killed in a bomb blast. Mohajid travelled separately from his parents. 26I have also had regard to the evidence given by Said Jawid Adilzada, which is summarised in my judgment in the related matter heard with this application, being an application brought by the defendant to strike out, on various bases, proceedings commenced by Jawid (see [9] - [22] of that judgment).

The Explanation for the Delay 27The evidence establishes that the plaintiff was discharged from hospital in late 2007. In February 2008 his father sought the assistance of the Griffith Migrant Settlement Services on behalf of both the plaintiff and his brother Jawid. A claim was made against the CTP insurer of the plaintiff's vehicle on behalf of Jawid, but no claim was made on behalf of the plaintiff. In due course there were settlement negotiations in respect of Jawid's claim. On 1 December 2009 that insurer issued a notice pursuant to s 81 of MACA denying liability, the reason being that the insured driver (i.e. the plaintiff) had advised the insurer that he was forced off the road by an "unidentified truck". 28Following his discharge from hospital, the plaintiff had returned to live with his family in Griffith. His father's description of him at that time, which was not challenged, was that he was "very depressed, crying, spending all day in bed, and complaining about headaches that would not go away, and pain in his back and neck". In December 2007 his father arranged for the plaintiff to travel to Pakistan to stay with relatives to recuperate from his injuries and psychological problems. He returned to Australia in June 2008 and for a short time, from August 2008 until October 2008, he returned to his work as a chicken boner at Barters Chickens in Griffith. He was taken to work each day by his brother. He was unable to cope with the work, and in February 2009 his father again arranged for him to travel to Pakistan to spend time with his family. He returned in March 2009 and moved to Shepparton with his older brother John. In late May 2009 the plaintiff moved to Adelaide and in June 2009 found work as a chicken boner for approximately 5-6 weeks. However, he was unable to cope with the work. 29On 11 January 2010 the plaintiff's father instructed solicitors in Adelaide, Messrs Vaezi & Partners to act on behalf of both Jawid and the plaintiff. The plaintiff was living in Adelaide with his older brother John at the time. 30In April 2010 the plaintiff was hospitalised in Adelaide, having suffered suicidal ideation, and after a second suicide attempt he returned to his family in Griffith where he required full time supervision. 31The steps taken by Messrs Vaezi & Partners on behalf of the plaintiff are set out in paragraph 24 of the affidavit of Jason Di Michiel sworn on 22 March 2012. I will not repeat all of the steps here, however, it included correspondence with the Nominal Defendant commencing on 8 February 2010, the provision of material establishing due search and inquiry on 30 March 2010, serving a personal injury claim form on 9 April 2010 and thereafter, liaising with the Motor Accidents Authority and Allianz Insurance, acting on behalf of the Nominal Defendant. 32On 10 May 2010 Allianz requested a statutory declaration regarding late lodgement of the claim and rejected the plaintiff's assertion that due search and inquiry had been satisfied. 33In May 2010 the plaintiff had moved back to Melbourne. Vaezi & Partners continued to act on his behalf, including arranging for a statement to be provided to the Nominal Defendant. 34In July 2010 Vaezi & Partners contacted solicitors in Sydney seeking information about personal injury claims in New South Wales and in particular, time limits. In August 2010 Vaezi & Partners briefed a barrister, Helen Wall to provide advice regarding claims brought out of time and due search and inquiry. 35It is clear that on 4 August 2010 those solicitors were given clear advice that there was a three year time limit expiring on 18 October 2010. 36An application was made to the Motor Accidents Authority for general assessment, and a special assessment claim was made in respect of the late claim. An application was also made for exemption to CARS dated 14 September 2010. 37On 24 September 2010 the Motor Accidents Authority rejected the application made by Vaezi & Partners for general assessment. The special assessment application made in respect of the late claim was accepted by the Motor Accidents Authority. 38By letter dated 1 October 2010, Allianz, acting on behalf of the Nominal Defendant, wrote to CARS acknowledging that Allianz had been provided with a full and satisfactory explanation for the late claim on 30 June 2010 which had never been formally rejected, and therefore pursuant to s 73(4)(a) the insurer had lost the right to reject the late claim. 39On 11 October 2010 Vaezi & Partners applied for exemption as a matter of urgency, given that the three year time limit was due to expire on 18 October 2010. The application was made on the basis that the insurer had indicated it would deny liability, however, the following day the solicitors were advised by the Motor Accidents Authority that CARS was not able to exempt the claim from assessment as it would require a s 81 notice from the insurer. 40The solicitors requested the s 81 notice from the insurer but were advised by the insurer that the relevant notice would not be issued until the matter proceeded through CARS in relation to what was referred to as the due search issue. 41On 29 November 2010 the Motor Accidents Authority wrote to Messrs Vaezi & Partners advising that the insurer had lost not only the right to dispute both the late claim, but also the due search and inquiry issue. The principal claims assessor advised that she had deferred a preliminary conference until 7 February 2011, but sought further information in relation to the claim for exemptions. 42As noted above, the Certificate for Exemption was issued by the Motor Accidents Authority on 18 February 2011 on the basis that the insurer denied fault as set out in a s 81 notice dated 7 February 2011.

The Plaintiff's Capacity 43In preparing the plaintiff's matter for trial, Paramount Lawyers obtained a report from Dr Carol Burton, Clinical Neuro-psychologist dated 23 December 2011. Dr Burton was qualified with a number of medical reports but also the various hospital clinical notes. She described the plaintiff on presentation in the following terms: "Mr Adilzada, now aged 27, was irritable, agitated and not particularly cooperative. When his father was in the room, he referred to his father for answers to simply biographical questions which were specifically addressed to him. His comprehension appeared reduced and he appeared to speak very little English. It was virtually impossible to get a history from him. When asked about the accident he at first said there was no accident. Later he said he didn't recall it - to ask his dad. When asked if he'd been told about what happened, he said 'a little, every day something happens'. He knew he was the driver and his brother was there. He said a truck was there "to kill, maybe it was destiny". He said he had no recall of the period before the accident or where they were going. ... In general, he was very distractable, moody, and child-like." 44In respect of the neuro-psychological assessment Dr Burton reported as follows: "He was not orientated as to time, place or person, didn't know his date of birth and had to look in his wallet in order to find reference to it. He told me he thought he could be 20 or 22. When asked what the date was, he didn't know - he thought it was Monday (it was Thursday). He did not know either the month or the year. He didn't know his address but he knew that he lived with his father in Melbourne. These responses are in marked contrast to his performance in relation to orientation at Albury Base Hospital as described in November 2007. Intelligence He was estimated to be of borderline/low average general intellectual capacity pre-morbidly, based on his alleged educational background and occupational history. Currently he is functioning intellectually within the moderately intellectually disabled range (Full Scale IQ 48, rang 46-52). ... He obtained a verbal comprehension index score of 50 (rated in moderately intellectually disabled range, 47-57). His verbal conceptual skills were impaired (rated at 0.01 percentile) and his social awareness and judgment was similarly at that low level. His general knowledge was impoverished (rated at 0.04 percentile). Verbal fluency (animal naming) was impaired, he had difficulty naming any animals and as noted above he made spelling errors in his writing, although he could read a simple sentence. ... Executive functioning was impaired. This includes a number of high level abilities that help guide and control behaviour, such as planning, generating new and novel responses (fluency), flexibly shifting attention between different types of information (cognitive flexibility), abstract reasoning, problem solving and inhibition of inappropriate responses." 45Dr Burton was of the opinion that the plaintiff had suffered a severe head injury and had been left with cognitive behavioural and emotional deficits as a consequence. She went on to opine: "In his case it is difficult to assess the precise interplay of neuropsychological factors from the brain injury which he has undoubtedly suffered, and psychiatric factors. It is possible that the personality changes and behaviour described and observed may be associated with profuse axomal injury, but psychiatric factors appear to be exacerbating any residual cognitive disfunction." 46On 21 March 2012 an Amended Statement of Claim was filed appointing a tutor on behalf of the plaintiff, based on the extent of the disability from which he was suffering.

The Defendant's Submissions 47The defendant has submitted that the explanation given by the plaintiff for the delay in commencing proceedings must be both full and satisfactory. In accordance with s 66(2) of the Act, such an explanation is defined as a "full account of the conduct, including the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation". The explanation must be full, in the sense that it enables the Court to evaluate the reasons for the delay. The defendant has submitted that the conduct referred to in s 66(2) is not limited to conduct of the claimant, but rather, a full account of the conduct of the claimant and persons acting on his behalf insofar as that conduct is relevant to the delay, relying on Walker v Howard, supra, per Allsop P at [72]. 48The defendant submitted that the word "full" must be given its "semantic significance" relying on the following statement by Young JA in Ellis v Reko Pty Limited [2010] NSWCA 319 at [19]: "The word 'full' is a word that must be given its semantic significance and it means that the explanation must be set out and it is not sufficient that the Court should be asked to draw inferences from correspondence, et cetera, at least where that is not obvious." 49The defendant acknowledged that the medical evidence discloses the plaintiff having reduced capacity to function in 2011, but submits that the evidence does not sufficiently explain the absence of any sworn evidence from the plaintiff on the present application. The defendant therefore submits that the absence of such evidence from the plaintiff would of itself result in a finding that the explanation given, as required by s 66(2), is not full. 50The defendant made no submission in respect of the adequacy or otherwise of the explanation provided by the plaintiff following the instructing of his present solicitors in February 2011. 51The defendant further submits that the evidence demonstrated that the plaintiff spent periods of time between the date of the accident and the date of the explanation in the company of his older brother, John, either overseas in Pakistan or living in Shepparton or Adelaide. In the absence of evidence from the plaintiff and his brother, the explanation for the delay could be neither full nor satisfactory. 52Finally, the defendant submitted that, relying on Salido v Nominal Defendant (1993) 32 NSWLR 524 per Gleeson CJ at 532 - 533, leave to commence proceedings may be refused if it would be plainly futile to grant it. 53In this case, the plaintiff's brother, Jawid, at first pursued a claim against the NRMA, the CTP insurer of the vehicle driven by the plaintiff at the time of the accident. It was submitted that that claim must have been pursued on the basis of Jawid's belief that the plaintiff caused the accident. Jawid subsequently signed a statement consistent with that belief and gave inconsistent histories as to what caused the accident. Given the absence of evidence from the plaintiff deposing as to the circumstances of the accident, the Court could not place any weight on the histories recorded elsewhere. In the absence of direct evidence that an unidentified vehicle was the cause of the plaintiff losing control of the vehicle, it was submitted that the granting of leave would otherwise be futile.

Plaintiff's Submissions 54The plaintiff has submitted that the history outlined above, derived from the evidence of his solicitor, Mr Di Michiel, and his father, provide a full and satisfactory explanation for the delay in bringing the plaintiff's claim. To the extent that that delay was caused or contributed to by the Griffith Migrant Settlement Services Coordinator, or by solicitors acting on behalf of the plaintiff, the delay could not lie at the feet of the plaintiff. Further, the insurer had not disputed the provision of a full and satisfactory explanation in respect of the late claim by their letter dated 1 October 2010. 55Similarly, there was no real dispute in respect of the issue of due search and inquiry as advised by the Motor Accidents Authority. The short delay caused by an administrative oversight of three months in filing the Statement of Claim, again, should not lie at the feet of the plaintiff, relying on Smith v Grant (2006) 67 NSWLR 735 at [32] and Khoury v Linfox Australia Pty Limited [2006] NSWCA 51.

Legal Principles 56The Full Court of the Court of Appeal settled the applicable principles pursuant to s 109 in Walker v Howard (2009) 78 NSWLR 161. The explanation should be full so as to enable the Court to evaluate the reasons for the delay, and all relevant information should be provided. The construction of s 66 (2) requires the section to be read as a composite whole to give content to the notion of a full and satisfactory explanation. "Satisfactory" means what is required as a sufficient explanation. The test is whether a reasonable person in the claimant's position would have been justified in experiencing the delay (per Allsop P at [108]). 57The Court considered the position of a claimant who lacks capacity, as is the present case (see [63] - [69] with respect to the phrase "position of the claimant"). The Court held where a claimant suffers brain damage, that phrase would extend to relatives acting on his or her behalf, together with solicitors retained to assist. "These are all aspects of the position of the claimant" - per Allsop P at [97]. Thus, the objective assessment of whether a reasonable person in the position of the claimant would be justified in experiencing delay may be determined by how others have acted on their behalf and who those other people are. 58The decision in Walker was consistent with the Court of Appeal's earlier decision in Smith v Grant [2006] NSWCA 244 where Basten JA, (with whom Handley and McColl JJA agreed) reviewed the earlier authorities including Figluzzi v Yonan [2005] NSWCA 290 and Russo v Aiello (2003) 215 CLR 643 and said at [60]: "60 Accordingly, the weight of authority under the 1988 Act 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. That is consistent also with the approach revealed in Khoury v Linfox Australia Pty Limited [2006] NSWCA 51 at [22] (Beazley JA, Tobias JA agreeing) in relation to the 1999 Act."

Application of Legal Principles to the Established Facts 59The principles outlined above are to be applied, in assessing the evaluative exercise pursuant to s 109, to a claimant in the position of the plaintiff. The plaintiff at the time of the accident had been in Australia for approximately one year. He suffered severe injuries in the motor vehicle accident which included a brain injury which has affected his capacity, and required the appointment of a tutor to protect his interests in the proceedings. 60The explanation, in the case of a person suffering mental incapacity, does not have to be provided by the claimant himself. In this case it has been provided by his solicitor, father and brother. The explanation has been "full" in that it has provided all relevant details to enable the Court to evaluate the reasons for the delay. They are manifold, and reflect in many ways the difficulties that new citizens from different cultural backgrounds and with language difficulties, who are in the process of settlement in this country, required to move from place to place, and State to State, for work and other reasons, are bound to experience in achieving compliance with highly procedural state based systems of compensation, in this case the MACA. 61Within a short time of his discharge from hospital the plaintiff's father, acting in his interest, consulted with the Migrant Settlement Services in Griffith. That service, through its Coordinator, proceeded to make a claim on behalf of the plaintiff's brother against the insurer of the plaintiff's vehicle. That claim was processed to the extent that negotiations took place in respect of settlement of the claim. At no time did the Coordinator or the service recommend that the plaintiff's father obtain legal advice or consult a solicitor in respect of his position. It was not until that insurer, NRMA, issued a s 81 notice in December 2009 denying liability for the claim that the plaintiff's father sought legal advice. At that time the plaintiff was settled in Adelaide, and solicitors there were consulted and proceeded to act on behalf of the plaintiff. 62Throughout 2010 those solicitors lodged a claim on behalf of the plaintiff with the insurer acting on behalf of the Nominal Defendant, and liaised with the Motor Accidents Authority. Although the claim was late, the insurer lost its entitlement to object to it on that basis. It is clear that the solicitors were aware of the looming expiration of the time limit on 18 October 2010. They sought the advice of Sydney solicitors and counsel in respect of processing the claim. They endeavoured, on behalf of the plaintiff, to meet the time limit, but were unable to do so, in part because the insurer would not issue a s 81 notice denying liability. The plaintiff's father, who became his tutor, acted reasonably in my view in relying on those solicitors. He said in his evidence that he trusted them. 63Furthermore, the Motor Accidents Authority on 29 October 2010 advised the plaintiff's then solicitors that the Nominal Defendant had lost the right to dispute whether due search and inquiry had taken place. Had the plaintiff issued his Statement of Claim within two months of the Certificate for Exemption being issued by the Motor Accidents Authority on 18 February 2011, there would have been no impediment to the plaintiff proceeding. 64Once the plaintiff's present solicitors were instructed they acted expeditiously on his behalf. No criticism was made of their role by the defendant, and the administrative oversight which caused a delay in filing the Statement of Claim was, in the overall scheme of things, de minimis. 65The defendant has submitted that it would be futile to grant leave in this matter, relying on the Court of Appeal's decision in Salido in respect of the absence of sworn evidence as to the circumstances of the accident. Whilst the circumstances of the accident are ultimately a matter for the trial Judge to determine, there is evidence as to those circumstances, which will no doubt be tested at trial, for example, the evidence of the plaintiff's brother Jawid, his claim form submitted in February 2008, the evidence of his father as to what he was told at hospital, and the evidence contained in the hospital records as to what the plaintiff told the speech pathologist on 13 November 2007, namely, that he swerved to avoid a truck and hit a tree (exhibit A). I therefore do not accept the defendant's submission that it would be futile to grant leave in this matter. 66For all of the above reasons I am satisfied that the plaintiff has provided a full and satisfactory explanation for the delay in bringing proceedings and I propose to grant leave for him to do so pursuant to s 109 MACA.

Orders 67I make the following orders: (1)I grant leave to the plaintiff to commence proceedings by filing the Statement of Claim in this matter on 25 July 2011, and to continue the claim by way of the Amended Statement of Claim filed on his behalf. (2)I dismiss the defendant's Notice of Motion dated 20 September 2011. (3)I order that the defendant pay the plaintiff's costs of the plaintiff's Summons filed on 11 November 2011 and the defendant's Notice of Motion filed on 20 September 2011. 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: 16 December 2013