Soo Pin TAN v Lorima BASAGA

PARTIES : Soo Pin TAN (Plaintiff) Lorima BASAGA (Defendant)

COUNSEL : S. Norton SC / E.Welsh (Plaintiff) W. Fitzsimmons (Defendant)

SOLICITORS : Brydens (Plaintiff) Moray & Agnew (Defendant)

• 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 McCALLUM J: Dr Soo Pin Tan is a medical practitioner. On 20 August 2005, while he was driving to work at Wollongong Hospital, Dr Tan's car was hit by another car when its driver tried to overtake in the left hand lane on the entrance ramp to the M5 motorway at Bexley. Dr Tan alleges that the collision occurred at a relatively high speed and involved a good deal of force. His car collided with the roadside barrier a number of times and he sustained injuries to his neck and back. 2 Dr Tan claims damages in negligence from the driver of the car, Mr Lorima Basaga. The application presently before the Court is an application by Mr Basaga's insurer to have the claim dismissed on the ground of delay in accordance with the provisions of s 73 of the Motor Accidents Compensation Act 1999.

Statutory context in which the application is brought 3 The claim is governed by the provisions of Chapter 4 of the Motor Accidents Compensation Act. Pursuant to s 72 of the Act, Dr Tan was required to make his claim (by giving notice of the claim to Mr Basaga's insurer) within six months after the date of the accident, that is, on or before 20 February 2006. Section 73 of the Act, however, makes provision for a claim to be made more than 6 months after the relevant date (called "a late claim"). A late claim may be made "if the claimant provides a full and satisfactory explanation for the delay in making the claim". That requirement is explained in s 66(2) of the Act as follows:

"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."

4 Pursuant to s 73(1) of the Act, the explanation is to be provided in the first instance to the insurer. Dr Tan's claim form was served on the insurer on 24 August 2007, just over two years after the accident. Following service of the claim form, there was an exchange of correspondence between Dr Tan's solicitor and the insurer during which three statutory declarations sworn by Dr Tan were provided setting out his explanation for the delay. 5 The insurer ultimately rejected the explanation. It appears that the dispute as to delay was then referred for special assessment in accordance with the procedure allowed under s 96 of the Act. In late 2008, a claims assessor certified that Dr Tan had a full and satisfactory explanation for the delay in making the claim. That determination had the legal effect of allowing the claim to proceed to assessment in accordance with s 73(3)(b) of the Act. 6 The claim was ultimately assessed and, according to a chronology provided at the hearing before me, a certificate under s 94 was issued on 26 March 2010 (the certificate was not in evidence). The statement of claim was filed within two months after that date, as permitted under s 109 of the Act. Accordingly, Dr Tan did not require the leave of the Court under that section to commence these proceedings. However, s 73(5) of the Act provides that, if court proceedings are commenced on a late claim, the insurer may apply to the Court to have the proceedings dismissed on the ground of delay. That is the application that has been made by the insurer in the present case. 7 Section 73(7) provides: "73 Late making of claims

(7) On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim."

8 Accordingly, the task is to determine whether I am satisfied that Dr Tan has a full and satisfactory explanation for the delay in making the claim. Unless I am so satisfied, I must dismiss the proceedings. In the circumstances set out above, there is no issue as to the explanation relating to the period after the claim was served on the insurer on 24 August 2007. The period for which the explanation is said to be unsatisfactory is the period of delay up to that date. The insurer very fairly acknowledged that there is no issue as to the fullness of Dr Tan's explanation. The only issue is whether it is satisfactory.

Dr Tan's explanation 9 Dr Tan's explanation for his delay in bringing his claim is, in short, that until he heard an advertisement on the radio for the law firm that now represents him, it did not occur to him that he could bring such a claim. 10 Dr Tan is from Singapore. He came to Australia at the age of 21 to study medicine at Sydney University. He graduated with a Bachelor of Science and a Bachelor of Medicine in 1998. 11 After obtaining his degrees, Dr Tan commenced employment in the public hospital system. He intended to train as a physician and in 2005 was offered a conditional advance training position at Westmead Hospital. However, he was under some financial pressure at that time because his parents had spent virtually all of their savings paying for his education and his father had since died by suicide. For that reason, Dr Tan deferred the offer to train as a physician and obtained employment as a locum at two hospitals, working alternate weeks at each hospital. His hours of work at those two hospitals were 60 hours per week and 70 hours per week respectively. 12 Dr Tan says that, prior to the accident in August 2005, he had no involvement with any form of paperwork required for bringing a claim under the Motor Accidents Compensation Act. He had never been injured in circumstances giving rise to a claim for personal injuries and had never sought legal advice about such matters. He says that he did not know anything at all about any legal requirements which applied if a person was injured in a motor vehicle accident. He does not believe Singapore has a system of third party compensation for motor vehicle accidents. He describes that country as "probably less litigious" than Australia. 13 Shortly after the accident, Dr Tan was contacted by Wollongong Hospital and advised to lodge a worker's compensation claim, since his accident had occurred on his way to work. That claim was accepted and for a period of time Dr Tan received compensation for medical treatment. He initially undertook physiotherapy to treat the soft tissue trauma. His physiotherapist recorded that Dr Tan was experiencing pain, nausea and dizziness at that stage but that he had continued to work full-time throughout his recovery phase. 14 It was around that time (shortly after the accident) that Dr Tan proposed to the woman to whom he is now married. In his affidavit sworn in opposition to the present application, he states that he was expecting at that stage to make a full recovery. Although pain persisted, he continued to hold that expectation throughout 2006. He thought that appropriate medical treatment would provide a cure to his ongoing condition. He was also very focused on remaining at work during that time due to the need to provide financial support to his mother and to pay for his wedding. 15 In September 2006, in the face of chronic pain, Dr Tan was referred to a neurosurgeon. He was beginning to experience difficulty sleeping and was becoming concerned that he had "lost [his] career goals". He reduced his work hours at one hospital in 2006 and reduced the hours at the other hospital in 2007. 16 By mid 2007, Dr Tan was becoming very depressed because he saw his situation as hopeless. He said: "It was at around that time that I heard a Brydens advertisement on 2GB and the advertisement referred to a car accident. It was shortly after that that I made arrangements to see my solicitor at Brydens." 17 It was accepted on behalf of the insurer that the solicitor then acted promptly in making the claim. 18 Until the time when the claim was made, Dr Tan said he had done his utmost to overcome the injuries that he had suffered. He said: "The workers' compensation insurer had been paying my treatment expenses and no one had ever suggested to me that I should obtain legal advice or that there was a claim form which had to be completed to bring a motor accident claim". 19 Dr Tan was cross-examined at the hearing before me. It was urged upon him that he must have known of the right to make a third party claim as a result of having purchased a "green slip" each year for many years when he renewed the registration of his car. He acknowledged that he understood that the price of a green slip was paid to an insurance company but maintained that he did not know what it covered. He simply knew that in order to get his car registered, he needed to have a "pink slip" and a "green slip". 20 Dr Tan accepted that, by at least October 2006 when he saw the neurosurgeon, he knew that he had more than just a whiplash injury. By then, his injuries were having a significant impact on him on a continuing basis and he was contemplating the prospect that he may have to have back surgery. He maintained, however, that it still did not occur to him to consult a lawyer as to his rights. He said it had never crossed his mind to do so and that his concern during that period was to try to get better. 21 Separately, Dr Tan was pressed as to his contention that the event that prompted him to consult a lawyer was his hearing the advertisement for Brydens Law Office on Radio 2GB. It was suggested to him that he had been in his car a lot, listening to the radio, during the preceding two years. Dr Tan responded that generally on his way to and from work he used to listen to Christian worship music. He said that, the day he heard the advertisement, he had only turned to listen to 2GB because he was caught in a traffic jam and he knew that 2GB had traffic reports. 22 In the context of that evidence, there was the following exchange: "Q. Do you say you never listen to commercial radio at any time during that period? A. No, not much. Q. Not much or never? A. Up to that day, it happened to be that day I listened to it because I was caught in a jam and I needed to find out, because I was going to be running late for work. HER HONOUR Q. How do you know 2GB had traffic reports? A. I heard ABC before and when the news is, 2GB talk about traffic reports. Q. How did you know that 2GB regularly published reports on traffic jams? A. I think I heard it on the news on ABC before that day, talking about 2GB having traffic reports. I saw news on TV. So that's why I turned to 2GB." 23 I accept, as submitted by Mr Fitzsimmons on behalf of the insurer, that Dr Tan's evidence on that issue was inherently improbable. In particular, it seems unlikely, as apparently suggested in those answers, that ABC Television reported the fact that there are traffic reports on Radio 2GB. The impression I formed during the cross-examination was that Dr Tan was probably exaggerating the extent of his isolation from the media so as to avoid what he perceived as a dangerous concession. After careful consideration of the whole of his evidence, however, I do not think his exaggeration in that particular respect undermines the credibility of his central contention that it simply did not occur to him, before he turned his attention to the Brydens advertisement that day, that he could bring a third party motor accident claim.

Principles to be applied 24 There was no dispute between the parties as to the principles to be applied in determining whether the explanation is satisfactory. What is required is justification for the delay, not demonstration that the delay caused no harm or prejudice to the insurer: Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7] per Gleeson CJ. 25 In Russo, the Chief Justice expressly noted (at [6]) that the Court in that case was not concerned with "the possible significance of incompetent or inadequate legal advice, or lack of awareness of the time limits on making a claim" (I hasten to note that there is no suggestion of incompetent or inadequate legal advice in the present case). Separately, McHugh J observed that the question whether the explanation is full and satisfactory, although a factual issue rather than a legal issue, involves a value judgment on the part of the Court: at [27]. That judgment, however, must be reached having regard to the objects stated in s 5 of the Act. 26 The position of a claimant unaware of his or her legal entitlements (which was expressly reserved in Russo) was considered by the Court of Appeal in Figliuzzi v Yonan [2005] NSWCA 290. In that case, a delay of over six years was explained by the fact that the claimant wrongly believed her only claim was under the Worker's Compensation Legislation, since she had been injured in a car accident on the way to work. The Court of Appeal held, by majority, that a full and satisfactory explanation for the delay had not been provided: at [100] to [104] per Tobias JA; at [133] to [135] per McColl JA; Santow JA disagreeing at [23] to [25]. 27 An important feature in Figliuzzi was the fact that the claimant was employed by the Legal Aid Commission, although as a clerk, not as a lawyer. Tobias and McColl JJA each concluded that a reasonable person in her position, working in a legal environment, would not have relied on her own belief as to her legal rights but would have sought legal advice to ascertain whether her belief was correct. 28 In Walker v Howard [2009] NSWCA 408, the Court of Appeal (sitting with a bench of five) considered the position of a claimant who suffered serious brain damage in a motor accident and who had been unable to look after his affairs since the accident. The proceedings were not commenced within three years of the accident and accordingly required the leave of the Court under s 109 of the Motor Accidents Compensation Act. The Court held unanimously that a full and satisfactory explanation had been provided. The decision provides useful guidance as to the attributes of the claimant to be considered when applying the objective test under s 66(2) of the Act. That test requires the Court to judge the claimant's explanation by reference to "a reasonable person in the position of the claimant". The Court held, unsurprisingly, that the "position of a claimant" with a legal or physical disability (such as the serious brain damage suffered by Mr Howard) includes that disability: at [65] per Allsop P; Spigelman CJ agreeing at [1]; Campbell JA agreeing at [124]; Macfarlan JA agreeing at [129]; Young JA agreeing at [130]. 29 Allsop P said (at [68]): "That placement of a fictional person in [the claimant's position] can be seen as a means of stating that the Court can grant leave if it is reasonable to conclude that the delay was justifiable given this claimant's position". 30 His Honour continued, at [69]: "The phrase "position of the claimant" is not limited in terms to the personal or physical characteristics of the claimant. It connotes aspects of place and circumstance relevant to the enquiry. It is not possible or desirable to seek to identify all the possible characteristics of the claimant that the phrase "in the position of" implies. Nor is it possible or desirable to seek to identify the obverse - all the objective characteristics implied by the phrase "reasonable person". The scope of each is conditioned by the context - injuries from a motor vehicle accident and the explanation of the circumstances of delay in bringing suit in respect thereof." 31 Separately, Young JA expressed the view, with which I respectfully agree, that the attributes to be attributed to the hypothetical reasonable person in the position of the claimant include the age, sex and capacity of the complainant as well as his or her cultural background "at least within limits": at [138]. 32 Conversely, I am conscious of the need not to attribute the hypothetical reasonable person with so many of the characteristics of the individual claimant as to displace him altogether: cf Walker v Howard at [141] per Young JA.

A reasonable person in the position of Dr Tan 33 On the strength of Dr Tan's evidence, I am satisfied as to the following matters relating to him:

(a) that he was raised in a culture in which he did not observe litigiousness to any significant degree; (b) that, in the period leading up to the accident, he worked extremely long hours and was focussed on advancing professionally and earning a good income; (c) that, following the accident and at least until early to mid 2007, he was optimistic as to his prospects of making a good recovery and determined to undergo all available medical treatment towards that end; (d) that, during the same period and up to mid 2007, no person had told him, and it did not cross his mind, that he may have a cause of action against the driver of the other car. It necessarily follows that he was unaware of any time limitation for bringing any such claim; (e) that, because he was focussed on making a good recovery and earning a good income during that period, whether or not he saw or heard other advertisements for legal services, he drew no significance from any such advertisements by reference to his own circumstances; (f) that it was not until early to mid 2007 that he became gravely concerned as to whether he would in fact make a good recovery; (g) that it was not until he heard the Brydens advertisement in mid 2007 that his attention was drawn to the fact that he may have a claim and that it was only then that he determined to obtain legal advice as to his right to make a claim against the other driver; (h) that, upon turning his mind to those matters, he acted promptly. 34 In my judgment, a reasonable person in that position would have been justified in experiencing the same delay. The delay experienced by Dr Tan was due primarily to a combination of his ignorance of the existence of the cause of action he now seeks to prosecute and the fact that his attention was focussed on recovering his good health and pursuing his professional goals. 35 As to his ignorance of the existence of the cause of action (and, necessarily, of any time limitation attaching to such a cause of action), I take into account Dr Tan's cultural background combined with fact that, since his arrival in Australia, he has effectively been immersed in his studies and, subsequently, his work as a doctor. The product of those circumstances is that, although well-educated, he appears relatively naïve. It is uncontroversial that he worked extremely long hours before the accident, and continued to do so for a lengthy period afterwards. In my view, a reasonable person in that position could fail to turn his or her mind to possible legal claims. 36 As to the fact that Dr Tan's attention was focussed on recovering his good health, it is quite understandable, in my view, that the thought of litigation did not intrude into that positive frame of mind. I am satisfied that a reasonable person intent on making a full recovery and endeavouring to pursue advancement in his profession throughout his treatment would have been justified in not adverting to possible legal remedies. 37 It was only as Dr Tan's physical condition persisted beyond the reach of that optimistic outlook that his attention was attracted by the lawyers' advertisement. I think the delay between the date of the accident and the date on which he consulted his present solicitor was a delay that a reasonable person in the position of Dr Tan would have been justified in experiencing. 38 Accordingly, I am satisfied that Dr Tan has provided a full and satisfactory explanation for the delay in making the claim. It follows that the insurer's application must be dismissed.

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