Smallwood v Broome

District Court of NSW|2019-07-12

Table of Contents Contested notice of motion [1] - [4] Evidence relied upon by the parties [5] - [9] Accident circumstances and sequelae [10] - [11] Reasons for rulings made at the hearing [12] - [22] Refusal of defendant's application to cross-examine deponents [12] - [18] Refusal of informal application by defendant for a split trial [19] - [22] Legislation [23] - [25] Applicable legal principles [26] - [29] Factual chronology of events [30] Facts emerging from affidavit evidence [31] - [40] Plaintiff's affidavit [32] Plaintiff's mother's affidavit [33] - [34] Plaintiff's solicitor's affidavit [35] - [39] Defendant's solicitor's affidavit [40] Other relevant circumstances [41] - [48] Consideration [49] - [61] Whether proffered explanation is full [50] - [55] Whether proffered explanation is satisfactory [56] - [58] Whether s 109(3)(b) threshold is satisfied [59] - [61] Disposition [62] Costs [63] Orders [64]

Contested notice of motion

These reasons concern the determination of a contested notice of motion filed on 29 April 2019, by the plaintiff, Ms Harriet Smallwood, now aged 24 years and a resident of the United Kingdom, in proceedings in which she claims damages for alleged negligence by Mr David Broome, the defendant, in respect of injuries sustained in a motor vehicle accident on 21 October 2011 when she was aged 16 years.
The plaintiff's statement of claim was filed on 19 October 2018, which was outside the three year period within which she was required to commence the proceedings. That delay requires a full and satisfactory explanation: s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act").
Consequently, the plaintiff seeks an order granting leave to maintain these proceedings notwithstanding that they were filed out of time: s 109(1) of the MAC Act.
The defendant opposes the relief sought, and claims that the plaintiff has failed to provide the required full and satisfactory explanation for the delay in commencing the proceedings. The defendant also argues that the evidence relied upon by the plaintiff has not satisfied the requirement of showing that her claim meets the quantum threshold as specified by s 109(3)(b) of the MAC Act, and that each such failure precludes the grant of the leave she seeks.

Evidence relied upon by the parties

As evidence at the hearing of the motion, the plaintiff relied upon the following affidavits: 1. The plaintiff's own affidavit, affirmed on 27 June 2019; 2. The affidavit of her mother, Ms Nicola Jane Smallwood, sworn on 28 June 2019; 3. The affidavit of her solicitor, Ms Karina Jane Goodall, affirmed on 12 July 2019; 4. The affidavit of Ms Larissa Mepstead, the solicitor for the defendant, sworn on 9 July 2019.
No oral evidence was called at the hearing of the motion.
The plaintiff also tendered an email sent to the solicitor for the defendant on 10 July 2019 seeking to clarify the issues to be argued in the motion: Exhibit "A".
In addition, the plaintiff tendered a letter dated 16 April 2012 from the plaintiff's treating pain management specialist (Exhibit "B"), relevant to the quantum issue to be proven according to the requirements of s 109(3)(a) of the MAC Act.
The defendant tendered a letter dated 7 June 2013 from Mr Tony Merritt, the plaintiff's former treating psychologist: Exhibit "1". The purpose of that tender was to seek to cast doubt upon the reliability of the plaintiff's explanation for the delay in commencing proceedings. In my view, that letter did not have the effect contended by the defendant.

Accident circumstances and sequelae

Briefly stated, the accident circumstances, as appears from the contemporaneous record of the plaintiff's post-accident hospital admission, were that at about 19:35 hours on Friday, 21 October 2011, the plaintiff's right leg was injured whilst she was alighting from the defendant's vehicle. The vehicle was said to have lurched forward whilst she was in the process of alighting, and she then fell to the ground, at which time the rear tyre ran over the back of her right leg to the ankle, causing grazing to that leg and to her right knee. At hospital, the diagnostic impression was of a soft tissue injury to the lateral side of the left ankle. An x-ray did not reveal any fracture: Exhibit "A", p 1; p 10.
The plaintiff has gone on to develop a serious and debilitating complex regional pain syndrome with related disabilities of both a physical and psychological nature.

Reasons for rulings made at the hearing

At the hearing of the motion, the defendant made two applications, both of which were refused. The first was an application to cross-examine deponents who were outside the jurisdiction. The second was for a splitting of the issues for trial. At the time, the parties were informed that the reasons for the refusal of those applications would be included in the reasons for the determination of the present notice of motion.

Refusal of defendant's application to cross-examine deponents

At the outset of the hearing of the motion, the defendant sought leave to cross-examine the plaintiff and her mother, both of whom are in the UK. The suggested method was by way of audio-visual link in order to test the affidavit evidence. No prior notice was given for that application. The ambushing nature of the timing of that application is self-evident.
The defendant accepted that there was no automatic right to cross-examine the deponents of affidavits in interlocutory proceedings. Any such cross-examination should only be by leave: Ren v Jiang [2014] NSWCA 1, at [11] - [12]. No compelling reasons have been shown to justify taking the course sought by the defendant.
In my view, the late notice of the application to cross-examine, combined with the inevitable effect of cost and delay in acceding to the defendant's application, were factors fatal to that application in this case. That application was therefore rejected.
To accede to the defendant's application this would have necessitated an adjournment, which was unreasonable in the circumstances, and in light of the cited authorities, the suggested course was contrary to the spirit of s 56 of the Civil Procedure Act 2005 (NSW) as it was likely to be productive of needless delay, expense and injustice.
The defendant argued that prejudice would arise if the application was refused. However, the defendant could not identify any significant prejudice beyond the presumptive prejudice involved in all litigation: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25.
In my view, the defendant's argument as to prejudice was difficult to sustain, especially where the defendant is in possession of two liability investigation reports in respect of which privilege is claimed: T6.25. The defendant ultimately accepted that the prejudice argument was difficult to argue or maintain: T8.17. I do not accept that the defendant is materially prejudiced by a refusal to grant an adjournment to facilitate cross-examinations on affidavits at an interlocutory stage.

Refusal of informal application by defendant for a split trial

Following short oral notice given to the plaintiff's legal representatives, moments before the commencement of the hearing, the defendant's legal representatives indicated an intention to seek an adjournment of the hearing of the motion in order to formulate an application for a split trial of the issues. That application was refused.
In my view, the belatedness of the split trial application requires that it be rejected: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27.
The extremely short notice of the application given is contrary to the "cards on the table" approach expected of parties in modern litigation: Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346; White v Overland [2001] FCA 1333.
In my view, the circumstances of the defendant's late application for a split hearing offended against all three elements of the principles embodied within s 56 of the Civil Procedure Act 2005.

Legislation

Section 109 of the MAC Act provides as follows: 109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (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 non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
The expression full and satisfactory as referred to in s 109(3)(a) of the MAC Act is defined in s 66(2) of that Act as follows: "66 Definitions … (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 would have failed to have complied with the duty or would have been justified in experiencing the same delay."
Those provisions have been the subject of judicial consideration which has led to a body of well understood principles concerning how such cases should be determined.

Applicable legal principles

In an application of this kind, proof of likely quantum is a comparatively low threshold that is satisfied by taking the plaintiff's medical evidence at its highest to determine the likelihood of an ultimate quantum assessment exceeding the statutory threshold required by s 109(3)(b) of the MAC Act: Dijakovic v Perez [2015] NSWCA 174, at [109], [120], [133], [134].
In making a quantum assessment pursuant to s 109(3)(b) of the MAC Act, the question of whether there is a likely or real chance of the quantum threshold being met should take into account any alleged contributory negligence: Sinclair v Darwich [2010] NSWCA 195, at [34] - [37].
A full and satisfactory explanation for the delay in commencing proceedings under the MAC Act must relevantly address two elements for an evaluative judgment to be made. The first element must include a full account of the conduct, actions, knowledge and belief of the claimant from the date of the accident until the time the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the plaintiff would have experienced the same delay: Karambelas v Zakvic (No 2) [2014] NSWCA 433, at [17] and [36] - [37].
In this case, there is no suggestion that any part of the delay incurred was due to any blameworthiness on the part of the plaintiff's solicitor: Smith v Grant [2006] NSWCA 244, at [33] - [36].

Factual chronology of events

The plaintiff's circumstances have become quite complicated. Those complications have been influential in the delay that has been experienced in bringing this claim against the defendant. The framework for this motion appears from the following chronology:
9 March 1995 Plaintiff's date of birth.
January 2009 Parental separation.
2011 Plaintiff's mother diagnosed with depressive illness.
15 September 2011 Death of plaintiff's maternal grandmother.
21 October 2011 Date of accident when plaintiff was aged 16 years.
9 March 2013 Plaintiff reaches age of majority.
August 2013 Plaintiff moved to the UK with her mother and siblings.
8 January 2018 Plaintiff consults present solicitor.
10 January 2018 Personal claim form served on NRMA.
24 January 2018 CTP insurer seeks a full and satisfactory explanation for the delay in making her claim.
19 March 2018 Plaintiff's statutory declaration containing her asserted full and satisfactory explanation served on CTP insurer.
4 April 2018 CTP insurer rejected plaintiff's explanation.
4 April 2018 CTP insurer issued s 81 notice denying liability for the plaintiff's claim.
10 May 2018 Exemption Certificate issued pursuant to s 92(1)(a) of the MAC Act.
19 October 2018 Plaintiff's statement of claim filed.
November 2018 Plaintiff meets with her solicitor in London.
19 March 2019 Plaintiff's solicitor provides CTP insurer with further statutory declaration providing explanation for delay in commencing proceedings.
25 March 2019 Directions hearing.
29 April 2019 Present notice of motion filed.

Facts emerging from affidavit evidence

The affidavit evidence fills in material gaps in the abovementioned chronology and reveals a number of relevant events and periods that serve to explain the delay in the commencement of the proceedings.

Plaintiff's affidavit

The plaintiff has filed a comprehensive affidavit. It traversed her pre-accident history (paragraphs 4 to 12), her family background and the associated disruption to her life from those issues (paragraphs 13 to 27), the accident circumstances and the immediate treatment that followed (paragraphs 28 to 57), the subsequent medical and allied treatment she received, and which described her accident-related health issues and struggles (paragraphs 52 to 82), the pathway by which she came to seek and obtain legal advice which led to the present application (paragraphs 83 to 109), a comprehensive list of her injuries and disability (paragraphs 110 to 113) and details of her educational history (paragraphs 114 to 131), her employment history (paragraphs 132 to 141), her post-accident domestic situation (paragraphs 142 to 147) and her most recent treatment (paragraphs 148 to 156).

Plaintiff's mother's affidavit

The plaintiff's mother's affidavit contains a most comprehensive factual narrative, comprising 145 paragraphs. It contains background information that is relevant to an assessment of some of the factors that influence the exercise of the discretion conferred by s 109 of the MAC Act.
Essentially, in relation to the pre-accident period, the plaintiff's mother's affidavit demonstrates: 1. In 1997, the plaintiff's mother, who ordinarily would have been her tutor and was the plaintiff's responsible adult, had suffered a traumatic brain injury which has left her with some significant organisational deficits: Paragraphs 29 to 46 of Ms Smallwood's affidavit; 2. In the background, and since December 2001, the plaintiff's mother has been concerned with the management of the significant health problems of the plaintiff's younger brother: Paragraphs 49 to 52 of Ms Smallwood's affidavit; 3. A marital breakdown occurred between the plaintiff's parents in 2009. This was associated with significant family and financial stress: Paragraphs 60 to 73 of Ms Smallwood's affidavit; 4. The plaintiff's mother, as a single parent, has had her own health issues and was expending her energies managing her work as a trainer of teachers at various places throughout the Sydney Metropolitan area, and did not immediately appreciate the full nature or extent of the plaintiff's injuries, at the time of injury on the day in question or when she was discharged from hospital. At the time of the plaintiff's accident Ms Smallwood was living in stressful circumstances, as a single mother with three dependent children. After the accident, a significant amount of her time and energies were taken up with ensuring that the plaintiff's post-accident medical and related needs were met. It therefore took some time before the plaintiff was referred to a pain management specialist and then diagnosed with complex regional pain syndrome. In the context of a marital breakdown, managing the mounting cost of medical treatment for the plaintiff and her own health issues, a consequential delay occurred before she tried to contact the defendant to seek more details of the subject accident and the vehicle involved: Paragraphs 75 to 116 of Ms Smallwood's affidavit; 5. It was not until Ms Smallwood began to feel the financial stress of maintaining the plaintiff's treatment expenses that one of the treating doctors suggested that efforts be made to try and identify the motor vehicle involved in the plaintiff's accident; 6. Ms Smallwood ultimately made an approach to the defendant's family, but she was immediately rebuffed when she sought to ascertain in more detail what had occurred in the circumstances of the accident. This caused interpersonal difficulties for her and the plaintiff with that family because the defendant was the grandfather of the plaintiff's school friend. On the day of the accident, the plaintiff was at her friend's home shortly before the accident, and the defendant was in the course of giving the plaintiff a lift in his car when the accident occurred. Following the enquiry Ms Smallwood made of the defendant's family, matters became unpleasant for the plaintiff at school, causing her to become isolated: Paragraphs 117 to 119 of Ms Smallwood's affidavit; 7. On 30 March 2012, the plaintiff and her mother reported the incident to Waverley Police Station. At that time she was not given advice about making a claim for compensation or related time limits. She had no independent knowledge of the details and the requirements of the MAC Act scheme. As a result of all the other difficulties in the family circumstances, Ms Smallwood just let the matter go as she could not cope with confrontation. In addition, to the described family stresses, Ms Smallwood's mother had died on 15 September 2011. The plaintiff's father left Australia and Ms Smallwood was left with little family or practical support, so in August 2013, she left Australia to return to the UK: Paragraphs 120 to 129 of Ms Smallwood's affidavit; 8. Ms Smallwood started to consider making enquiries as to how to recoup monies spent on the plaintiff's medical treatment but did not know how to go about doing so and she had no advice in that regard: Paragraphs 130 to 133 of Ms Smallwood's affidavit; 9. By then, on returning to the UK in August 2013, the relationship between the plaintiff and her daughter had broken down, and this has unfortunately remained the position between them: Paragraphs 134 to 148 of Ms Smallwood's affidavit.

Plaintiff's solicitor's affidavit

The plaintiff's solicitor, Ms Karina Goodall, has prepared a comprehensive affidavit which was read in support of the plaintiff's motion. Her first contact with the plaintiff was on 10 January 2018, at which time she took a comprehensive account from the plaintiff as to the circumstances of the alleged accident. In that account the plaintiff had indicated to her that she had left Australia in August 2013, when the limitation period had not yet expired, and that the plaintiff had not been aware of the applicable time limits: Affidavit Paragraphs 2 to 3.
At the time of that first contact, it was apparent the solicitor needed to act quickly and appropriately on the plaintiff's behalf and she did so, culminating in the commencement of the present proceedings on 19 October 2018. The proceedings were ultimately served on the CTP insurer in February 2019: Affidavit Paragraphs 4 to 56.
Between 10 February 2019 and 10 July 2019, the plaintiff's solicitor engaged in appropriate and responsive correspondence with the solicitor for the defendant, against the background of appropriate procedural steps in compliance with the duty to act appropriately to the circumstances of the claim and the matters in dispute.
The end result of that correspondence is that the defendant has continued to maintain opposition to the plaintiff's application.
In my assessment, there is nothing that emerges from within the explanation provided by Ms Goodall that would contraindicate the grant of the leave that the plaintiff seeks in this notice of motion. I consider the interval of delay between the filing of the statement of claim on 19 October 2018 and the service of that document on the defendant's insurer in February 2019 to be immaterial.

Defendant's solicitor's affidavit

Ms Mepstead's affidavit dealt with formal matters. It annexed the plaintiff's claim form, relevant notices and correspondence between the insurer and the respective solicitors. It contains nothing of substance that derogates from the explanations advance on behalf of the plaintiff.

Other relevant circumstances

The hospital records show that the plaintiff had Medicare eligibility as an Australian citizen and that she was a member of a health fund: Exhibit "A", p 5. Part of her treatment was apparently paid by those organisations whilst she was in Australia.
After discharge from hospital on the same date as she presented, the plaintiff saw her general practitioner who then commenced a process of referral of the plaintiff to orthopaedic and pain management specialists for assessment, management and treatment: Exhibit "A", pp 11 - 22. For present purposes it is not necessary to analyse the details of those injuries or treatment other than to identify the orthopaedic diagnosis of neuropathic damage that occurred at the time of a crushing injury, which ultimately led to a diagnosis of complex regional pain syndrome in the plaintiff's right leg, requiring regular review. She was prescribed medications to manage that condition but this made her sleepy and as a result, her school performance was adversely affected.
In addition to physical problems such as shooting pains in the right leg, swelling and other abnormal sensations in that leg, disturbed sleep, and impaired concentration the plaintiff was also diagnosed with psychological symptoms including anxiety, for which she was also referred for treatment.
The plaintiff's personal injury claim form, ultimately signed on 10 January 2018, described her injuries as a crush injury to the left lower limb, complex regional pain syndrome in the right leg and foot, depression and anxiety: Exhibit "A", p 30.
The plaintiff reached her age of majority on 9 March 2013 whilst she was still in Australia. Prior to December 2017, when she returned to Australia from the UK on a visit, she had no knowledge of the availability of a claim for damages or the requirements of the scheme of the MAC Act.
Prior to that time, the plaintiff had been significantly affected by the aftermath of the subject accident, both physically and psychologically. Those circumstances were not improved or assisted by the acrimony that had developed between her parents over their separation and subsequent divorce.
In an attempt at seeking rapprochement with the father, the plaintiff visited him in Melbourne in December 2017, at which time he suggested that she seek out the names of some lawyers experienced in personal injury litigation to advise her as to whether she would be able to make a claim for compensation. The result of those inquiries was that on 8 January 2018, she contacted the firm of solicitors who now act for her in these proceedings.
After a Skype conference with the principal of that firm, which the plaintiff then engaged, the procedural steps outlined in the affidavit of Ms Goodall promptly followed.

Consideration

The defendant submitted that the explanatory account given by the plaintiff was neither full nor satisfactory. It was argued that was so because the explanation proffered did not include relevant inclusions as to the plaintiff's knowledge and belief as to the requirements for bringing proceedings within the time specified by statute, and that it remains unknown as to whether the plaintiff was ever advised, either by her lawyers, as to such matters. Accordingly, it was submitted that the plaintiff's explanation was not satisfactory.

Whether proffered explanation is full

In my view, the plaintiff's cited explanation for the delay, including the background information provided by her mother and her solicitor, together with her prolonged absence from the jurisdiction, constitutes a full explanation for the delay within the meaning of s 109 and s 66(2) of the MAC Act.
The affidavit evidence and the plaintiff's circumstances as summarised in the preceding paragraphs provides ample and persuasive evidence of the fullness and the satisfactory nature of the explanation for the delay in commencing these proceedings. In my assessment, sufficient detail as to the plaintiff's knowledge and belief regarding the circumstances justifies the conclusion that she has provided a full explanation for the delay.
The plaintiff was a minor at the time the accident occurred. What then followed was a continuum of difficulty during which she has been beset with consequential physical and psychological problems.
Against that background, and because of a parental marital breakdown, her parents were not equipped to assist her to gain access to the information she needed in order to seek to comply with the procedural requirements of the MAC Act scheme. Those matters, and the plaintiff's location in the UK did not assist her.
Once the plaintiff made contact with her present solicitors the claim has been advanced promptly and appropriately. There is no evidence to suggest the existence of a material prejudice that would hinder a fair trial of the issues from the perspective of the defendant.
I consider that the combination of the comprehensive affidavit evidence relied upon by the plaintiff, including the affidavit of her solicitor, in the context of her medical issues, provides full explanation for the delay that has been incurred in commencing these proceedings.

Whether proffered explanation is satisfactory

In my assessment, the full and satisfactory explanation provided by the plaintiff is also satisfactory in the terms that a reasonable person in the position of the plaintiff would have justifiably experienced the same delay to that which has been incurred by the plaintiff.
That is so because of the combination of factors already reviewed, namely her minority at the time of the accident, the ensuing disabilities that were psychologically preoccupying, the parlous family circumstances, and the fact that for family reasons, the plaintiff returned to live in the UK.
I conclude that the hypothetical reasonable person in the position of the plaintiff, being affected by the confluence of those inter-related factors, would most probably have experienced the same delay to that which the plaintiff has experienced in this instance.

Whether s 109(3)(b) threshold is satisfied

It is common ground that in this case the quantum threshold which the plaintiff must meet is $112,500. My evaluation of the quantum materials tendered on the hearing of this motion reveals that it is very likely that the plaintiff will obtain a monetary result from the proceeds that satisfies that monetary threshold: s 109(3)(b) of the MAC Act. That conclusion arises from the following matters: 1. The claim for out-of-pocket expenses is modestly estimated at $10,000; 2. The claim for past domestic assistance from 2013 to date is estimated at $185,900; 3. It is therefore not necessary to, at this point, seek to gain an impression of the likely quantum of future care and future treatment expenses; 4. Taking the plaintiff's medical evidence at its highest along with her factual account of her problems, the assessment of her claim for non-economic loss would very likely be a six figure sum.
In those circumstances, I consider that it is very likely that the quantum threshold identified in s 109(3)(b) of the MAC Act will be exceeded in this case.
The brief factual account in evidence at this interlocutory stage does not provide a satisfactory basis for making an evaluative judgment on whether there is a real chance or likelihood of a contributory negligence finding. Accordingly, there is no sound basis for inferring that there is a real chance or likelihood of such a finding being made at the trial. Accordingly, in this assessment, there is no reasonable scope for discounting quantum for the purpose of a s 109(3)(b) assessment: Sinclair v Darwich [2010] NSWCA 195, at [34] - [37].

Disposition

I find that the plaintiff has satisfied the requirements for the grant of leave to proceed as she seeks in this notice of motion.

Costs

As the plaintiff has succeeded in obtaining the orders that she seeks in this notice of motion, she should have an order that the defendant should pay her costs of this motion on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Pursuant to s 109(1) of the MAC Act, the plaintiff is granted leave to institute and maintain these already commenced proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 21 October 2011; 2. The defendant is to pay the plaintiff's costs of the plaintiff's notice of motion filed on 29 April 2019 on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. 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: 09 August 2019

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