Souraya Homsi v Ibrahim Nabulsi

Section 109 MACA

1. Section 109 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. (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 two 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."
2. The 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."
3. It is clear from s 109(3) that the relief sought, i.e. leave to commence proceedings, must not be granted unless I am satisfied of the matters contained in s 109(3)(a) and (b). The application is opposed by the defendant on the basis that neither ground has been made out, namely, that the plaintiff has not provided a full and satisfactory explanation for the delay, and further, that the total damages of all kinds likely to be awarded are not less than 25% of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor vehicle accident.
4. It is common ground that the amount proscribed by s 109(3)(b) is $112,500.00.

Evidence in the plaintiff's case

1. In his affidavit, Mr Meoni, deposed that he assumed carriage of the matter on behalf of the plaintiff in July 2015. He set out a review of the file which demonstrated that the plaintiff had instructed Mr J Di Michiel of Paramount Lawyers on 13 September 2013. Numerous steps were then undertaken to obtain the plaintiff's file from her previous solicitor, Mr M Bradstreet, including a complaint made to the office of the Legal Services Commissioner in January 2014. No relevant file was produced, and significant time was expended by the plaintiff's solicitors in attempts to procure that file. On a regular basis, the plaintiff contacted her lawyers throughout 2014 to ascertain the status of her claim and to inquire whether any progress had been made. It was not until the second half of 2014 that the plaintiff's solicitors sent her medical certificates to be completed by her treating doctor, and requested an incident report for the subject motor vehicle accident from New South Wales Police. Those solicitors also sought recovery of a property damage file from AAMI Insurance, the property damage insurer, which involved some delay.
2. In December 2014, the plaintiff's solicitors obtained the registration number for the "at fault vehicle" and ascertained that the CTP insurer for that vehicle was QBE.
3. In early 2015, the plaintiff contacted her solicitors a number of times to ascertain whether progress was being made with her claim. In June 2015, she was advised by her solicitors that a number of medico-legal examinations had been arranged for her. Her claim form was served on the insurer on 9 June 2015.
4. Mr Meoni deposed as follows: "48 When the statute of limitation period expired on 31 August 2015, the claim was still in its infancy, having been lodged approximately only two months prior. 49 I confirm my focus on the claim at this point in time was to address the late lodgement and procedural breaches of the Motor Accidents Compensation Act 1999."
5. Mr Meoni went on to depose that when the insurer issued its s 81 notice on 10 September 2015, denying liability on the basis that investigations were continuing: "51 There was no indication from the s 81 notice, dated 27 November 2015, that liability would be wholly denied, only that investigations in regard to the claim were ongoing and that a late explanation statement was still required." (sic). The reference to 27 November 2015 was clearly incorrect.
6. Mr Meoni then set out the circumstances in which the plaintiff provided a late explanation notice on 11 November 2015 and the defendant's eventual acceptance of that late claim explanation on 23 February 2016. Mr Meoni deposed that during the period November 2015 to March 2016, his sole focus was on addressing the procedural breaches of the plaintiff's claim and providing a full and satisfactory explanation for that delay. He also deposed: "64 At this point in time I did not believe that liability would be in issue, and once the late explanation statement had been provided and accepted by QBE Insurance, I believed a s 81 notice wholly admitting liability would be furnished."
7. When the insurer issued its s 81 notice on 1 April 2016 denying liability, Mr Meoni deposed: "This was the first time I turned my mind to the plaintiff's claim being outside of the limitation period."
8. Thereafter, Mr Meoni deposed that: "76 I confirm that since discovering that I had allowed this claim to run outside of the limitation period, I have taken all steps required as expeditiously as possible to have this matter exempted from the CARS Tribunal an the Summons filed in the District Court of New South Wales." 77 On my reading and review of Premier Lawyers' file, I can find no instance of Ms Homsi, ever being advised regarding the three year limitation period, nor was she advised the repercussions of breaching that period."
9. The Late Explanation Notice of the plaintiff made on 11 November 2015 was annexed to the affidavit of Mr Meoni. That statement set out in detail the plaintiff's background, family history, circumstances of the motor vehicle accident on 31 August 2012, the injuries suffered by her in that accident and their effect on her. The statement also set out in detail the plaintiff's reasons for instructing Mr Bradstreet, solicitor, and that he had told her in November 2012 that her claim had been lodged. However, by September 2013 she formed the view that Mr Bradstreet was not progressing her claim and therefore consulted Mr Di Michiel from Paramount Lawyers. The statement then set out in detail the plaintiff's dealings with her solicitors and the steps taken to obtain her file from her previous solicitor, Mr Bradstreet.
10. Although the police attended her at her home on the same day as the motor vehicle accident, it was discovered there was no event number, and on 19 September 2014 she attended the police station to obtain that number. On 17 December 2014 she was finally able to obtain the registration details of the other vehicle from the property damage insurer, AAMI.
11. The plaintiff also outlined the difficulties she had at home as a result of injuries suffered to her back an right leg in the accident. On 28 May 2015 she was injured in a second motor vehicle accident which aggravated those injuries. She set out the particulars of her ongoing disability as follows: "(a) Constant pain and discomfort in back (b) Aggravation to pain in back when sitting or standing for extended periods (c) Aggravation to pain in back when walking for extended distances (d) Aggravation to pain in back when lifting weights (e) Aggravation to pain in back when walking up and down stairs or on uneven surfaces (f) Aggravation to pain in back when bending or twisting (g) Constant pain and discomfort in neck (h) Aggravation to pain in neck when sitting or standing for extended periods (i) Aggravation to pain in neck when driving (j) Aggravation to pain in neck when lifting (k) Pain in neck radiates into head (l) Headaches (m) Blurred vision (n) Aggravation to pain in right leg when weight bearing (o) Anxiety (p) Stress (q) Depression (r) Mood swings (s) Anger bouts (t) Broken sleep pattern (u) Lethargy (v) Reclusive habits (w) Loss of self esteem (x) Loss of confidence (y) Loss of concentration (z) Loss of career opportunities (aa) Reliance on professional cleaner for home support"
12. The plaintiff set out details of the cleaner she employed for four hours per week to carry out housework. She stated: "81 Before my first accident, I used to do all this cleaning work by myself and I never had any problem doing it. I feel like my life has been a lot worse since these accidents, and I find myself struggling to keep up with all the things I have to do." In the context of her statement, the plaintiff's "first accident" was the accident on 31 August 2012, as there was no reference in her statement to an earlier motor vehicle accident in 2009.
13. The affidavit of Mr Meoni also annexed the plaintiff's s 85A particulars of her claim, together with a schedule of damages. The only heads of damages included in that schedule were as follows: Future treatment $36,003.45 Future domestic assistance $134,310.00 Total $170,313.45 Plus out of pocket expenses

1. Also annexed to the affidavit of Mr Meoni were two reports of Dr Peter E Giblin, orthopaedic surgeon, dated 14 March 2016, and a report from Ms Susie Mullen, occupational therapist, dated 9 March 2016. I refer to the opinions expressed in those reports below.

Evidence of the plaintiff

1. The plaintiff's affidavit sworn on 11 August 2016, also set out her family background. She suffered injuries in a previous motor vehicle accident on 2 April 2009, following which, she instructed Frisina Lawyers to act for her. She did not recall ever speaking to anyone from that firm about a time limit for making a claim, and the matter settled within two years of her accident. At the time of the claim, she had a young baby and she deposed that she did not "really understand the whole process, so I left it up to my lawyers".
2. The plaintiff deposed that the subject motor vehicle accident occurred on 31 August 2012. She had been driving along Campbell Street, Liverpool, and had stopped in order to turn left into Copeland Street. A broken down vehicle was ahead of her when it suddenly reversed and collided with her car, causing her to be pushed into a nearby fence. Later that day she phoned the police and was thereafter visited by police at her home where she was asked questions about the accident.
3. In the following days she noticed pain in her back, neck and right calf, as well as having a "sore head". She was recommended to Mr M Bradstreet, solicitor, and deposed that a few days later, Mr Bradstreet came to her parents' house to speak with her. He told her he would make a claim against the other driver and asked her to fill out some paperwork "and gave her a medical certificate to be completed by her general practitioner" The plaintiff consulted her GP, Dr Koleda, and returned the medical certificate to Mr Bradstreet prior to leaving on a trip to Lebanon on 13 September 2012. Whilst in Lebanon, she received some treatment. On her return to Australia on 1 November 2012, she contacted Mr Bradstreet's office and was told that a claim had been lodged and that it was progressing.
4. In 2013 she contacted the office of Mr Bradstreet on a number of occasions and was told that her claim was progressing. Following a phone call to Mr Bradstreet in August 2013 in which she was told that the solicitor did not "have time for my phone call as he was very busy", the plaintiff, on the recommendation of her brother, decided to instruct Mr J Di Michiel of Paramount Lawyers on 13 September 2013. Mr Di Michiel did not mention anything about time limits for either making a claim or commencing court proceedings. At that time, she believed that Mr Bradstreet had already made a claim on her behalf. Thereafter, for many months there was a dispute between her current solicitors and Mr Bradstreet over her file. A complaint was made to the office of Legal Services Commissioner. Throughout 2013 and 2014 the plaintiff had regular contact with her new solicitors, who seemed "to be working hard for me".
5. On 19 September 2014 she attended the Liverpool Police station to inquire about a police report for her motor vehicle accident. She thereafter obtained an event number for the incident.
6. In January 2015 she was told by her solicitors that a personal injury claim form would have to be lodged as that had not been done by Mr Bradstreet. She was not advised about any time limit for commencing proceedings.
7. On 27 October 2015 she was advised by her solicitors that the insurer had rejected her claim as it was late. She prepared a statement explaining the delay, which she signed on 11 November 2015. On 1 March 2016 she received advice that the insurer had accepted her explanation.
8. The plaintiff confirmed that she had been completely guided by the expertise and advice of her solicitors, now called Premier Compensation Lawyers, regarding her claim for compensation. At no time did those solicitors or her previous solicitor advise her that there was a three year time limit to commence proceedings. She first was advised about that time limit by Mr Meoni on 5 September 2016. She had thereafter instructed those solicitors to apply to seek leave to commence proceedings. At all times she had left the conduct of her claim up to her lawyers.
9. The plaintiff also confirmed that she was in a further motor vehicle accident on 28 May 2015, in which she sustained an aggravation of her injuries.

Cross-examination of the plaintiff

1. The plaintiff gave evidence that she contacted Mr Bradstreet one week after the accident, but she was not sure of the date. She had seen Dr Koleda before speaking to Mr Bradstreet, but again, was not sure when.
2. The plaintiff gave evidence that she saw Dr Koleda on two occasions before she left Australia on 31 September 2012. On one of those occasions she had asked that he complete a medical certificate. She denied that she had seen him on only one occasion, namely, 3 September 2012, and that that examination had nothing to do with the injuries suffered by her in a motor vehicle accident.
3. It was put to the plaintiff that she had in fact been examined by Dr Koleda on 1 August 2012 in respect to injuries suffered by her in a motor vehicle accident. She denied that she was in a motor vehicle accident on that day. She had returned the medical certificate from Dr Koleda to Mr Bradstreet, but had not kept a copy.
4. It was put to the plaintiff that she had not seen Mr Bradstreet before she went overseas and that she first saw him on 8 April 2013. She denied receiving a letter from Mr Bradstreet dated 8 April 2013, which read: "Re Accident of September 2012 I refer to my recent discussion with you. I enclose Motor Accident Medical Certificate. Would you be good enough to go to your local doctor, ask him to complete and sign the Certificate, and return it to me. This matter is urgent."
5. The plaintiff was not sure whether she had received a letter from Mr Bradstreet dated 14 May 2013 enclosing a further medical certificate.
6. The plaintiff was cross-examined about her examination by Dr Kanawati in 2014. She could not remember whether she discussed a motor vehicle accident with him that occurred in September 2013.
7. The plaintiff gave evidence that when she first saw Mr Di Michiel on 13 September 2013, the firm was called Paramount Lawyers. She had, however, signed a number of authorities addressed to Premier Lawyers which were dated 13 September 2013 (but not in her handwriting). She could provide no explanation for that anomaly.
8. The plaintiff gave evidence that she had given details of the identification of the other driver and his motor vehicle registration number to Mr Bradstreet. Those details had been written on a piece of paper which she had lost.
9. The plaintiff understood, following her claim made in respect of injuries received by her in the 2009 motor vehicle accident, that a claim form was required. She agreed that in mid 2014 she was aware that no claim form had been lodged on her behalf. In August 2014 she understood the urgency for which the medical certificate was required, namely, to complete the claim form. When asked why she waited for two months until October 2014 to obtain a certificate from Dr Kanawati, she could not remember any reason for the delay.
10. Once she received a medical certificate from Dr Kanawati in October 2014, the plaintiff acknowledged that she had not signed the claim form until 29 May 2015, some seven months later. When asked whether she was concerned that nothing happened in that period, she gave evidence that she had been told by her solicitors that "everything was going well".
11. The plaintiff was asked about the injuries she received in a motor vehicle accident on 28 May 2015, the day before she signed the claim form in respect of the subject accident. She had not mentioned that second motor vehicle accident in her claim form. Her reason was that she was not asked about it at the time. It was put to the plaintiff that she was not interested in pursuing her claim until after the motor vehicle accident on 28 May 2015, which she denied. She said she left it to her solicitors to progress her claim.
12. In respect of the accident itself, the plaintiff gave evidence that she had been on Castlereagh Street, waiting to turn right onto the Hume Highway, which was also known as Copeland Street. The force of the collision had dragged her into Copeland Street. She denied that she was confused about the details of the accident, but she agreed that in fact she had been in Campbell Street, not Castlereagh Street, prior to being hit.
13. The plaintiff was cross-examined about whether any of the lawyers she had seen had advised her about time limits for bringing a claim. She denied that she was given any advice about time limits for either a claim form or commencing proceedings.
14. The plaintiff agreed that, prior to the accident, she had been suffering symptoms in her back from the accident in 2009, and that she employed a cleaner three hours per week before the subject accident. In November 2016 she had given birth to her fourth child, a daughter, and she was in receipt of a carer's pension, as she lived with her elderly father. She also received a single mother's benefit.
15. In re-examination, the plaintiff gave evidence that after the accident in 2012, her eldest son, Bassan, was required to help her with household chores. Also, her mother, Nada Homsi, assisted her with those chores sometimes. in 2012 she had been living at Northumberland Street, Liverpool, which was corroborated by Ex 1, an incoming passenger card she completed in November 2012, on her return from Lebanon.
16. The plaintiff gave evidence that her mother assisted her on one or two occasions per week, and that she was helped by her children with washing and cleaning of the house.
17. The plaintiff confirmed that she had never been given any advice about time limits for bringing proceedings.

The defendant's evidence

1. The affidavit evidence relied on by the defendant of Mr D McLachlan, solicitor, concerned the following matters: 1. Affidavit affirmed on 27 September 2016 annexed the plaintiff's claim form dated 29 May 2015; medical certificate signed by Dr Kanawati on 13 October 2014; the New South Wales Police Report (noting the plaintiff was travelling along Copeland Street, Liverpool, prior to the accident); and treatment records from Dr Kanawati and Dr Koleda. 2. Affidavit affirmed on 17 November 2016 attached documents produced on subpoena by Mr Bradstreet, solicitor (advising the plaintiff instructed him around 8 April 2013, but that he never heard from her again); a medico‑legal report from Dr P L Harvey-Sutton dated 21 October 2016 (advising that the doctor could not identify any disabilities arising from the alleged accident of 31 August 2012); and correspondence concerning the plaintiff's property damage insurer, AAMI Insurance. 3. Affidavit affirmed on 22 November 2016 deposing to investigations carried by the CTP insurer to locate the whereabouts of the insured, who was unable to be located. 4. Affidavit affirmed on 7 February 2017 annexed further documents produced by Mr Bradstreet, solicitor, including a "client detail sheet" in which the date of accident was recorded as "7th?/8th? September 2013". The material also included a letter from Mr Bradstreet to the plaintiff dated 8 April 2013, referring to "my recent discussion with you". A file note dated 9 May 2013 records a telephone attendance on the plaintiff (inconsistent with the solicitor's previous disclosure that the plaintiff had never contacted him again after first giving him instructions).

The plaintiff's submissions

1. Counsel for the plaintiff submitted that the evidence upon which the plaintiff relied outlined a detailed and concise account of what she recalled of her conduct in bringing a claim, particularly in terms of her dealings with lawyers and doctors. The chronology of events outlined above showed that the events which led to the limitation periods lapsing were beyond the plaintiff's control, for example, [68] of Mr Meoni's affidavit, in which he deposed as to the first time he turned his mind to the expiration of the limitation period. Relying on the Court of Appeal's decision in Smith v Grant [2006] NSWCA 244, the plaintiff was entitled to rely on the conduct and advice of her solicitors, even if that conduct and advice was negligent.
2. With respect to the damages threshold contained in s 109(3)(b), Counsel acknowledged that the plaintiff relied on the reports of Dr Giblin and Ms Mullen, referred to above. It was submitted that evidence established that the plaintiff required between one and half to three hours domestic care in addition to what she was already receiving prior to the accident. The plaintiff relied on Dr Giblin's report, apportioning that need as to 50% to the subject accident, and 50% to the subsequent accident which occurred on 28 May 2015. It was submitted that it was most likely that the plaintiff's claim would cross that threshold.

The defendant's submissions

1. Counsel for the defendant submitted that the plaintiff did not pass the 25% threshold for damages pursuant to s 109(3)(b). Even on the plaintiff's best case, if both Dr Giblin and Ms Mullen's evidence was accepted, the plaintiff's treatment expenses relating to the subject accident were minimal. Any future treatment expenses were also minimal, and could not be assessed in the order of the $36,000.00 claimed by the plaintiff.
2. As to future care, the estimate of three hours additional care opined by Dr Giblin was for three hours per fortnight. In any event, his opinion in respect of future care would not be admissible at trial, relying on Boral Bricks Pty Limited v Cosmidis [2013] NSWCA 443.
3. Finally, if the court were to accept Ms Mullen's evidence, the additional care in respect of the subject motor vehicle accident, apportioned to 1.5 hours per week, would at best, over a period of the plaintiff's life expectancy of 62 years, result in an award of damages in the sum of $61,050.00, which fell well short of the threshold. The defendant submitted that in accordance with the Court of Appeal's decision in Dijakovic v Perez [2015] NSWCA 174, the plaintiff had not established that there was a "real chance" or a "real prospect" of her receiving damages to the extent required. The defendant characterised the plaintiff's chance here as being not more than a remote chance based on the evidence.
4. The defendant submitted that the explanation provided by the plaintiff was not a full explanation. Based on her evidence, and that of Mr Meoni, there remained unexplained inconsistencies which meant that the court could not accept the plaintiff's evidence. The first inconsistency was her evidence in relation to the date of the accident. Secondly, the clinical notes of Dr Koleda did not support the plaintiff's evidence. His records included an attendance on 1 August 2012, where she had reported being involved in a motor vehicle accident that day. On 3 September 2012 she had consulted Dr Koleda, but not in relation to any injury received in a motor vehicle accident.
5. Further, the plaintiff's evidence in respect of Dr Koleda completing a medical certificate before she left for overseas, could not be accepted. That certificate was provided on 18 July 2014, two years later. This had led to a two year delay in bringing her claim.
6. Counsel submitted that the evidence of the plaintiff concerning her retaining of Mr Bradstreet as a solicitor, days after the accident, was contradicted by documents produced by Mr Bradstreet, and in particular, the letter dated 8 April 2013 referred to above. Further, her evidence about the location of the accident and her description as to whether it occurred in Copeland Street, Campbell Street, or Castlereagh Street, was confusing and ambiguous.
7. Counsel submitted that the plaintiff had left gaps in her explanation, namely, that there was no explanation why she waited two months to get a medical certificate signed by Dr Kanawati in October 2014, after she had been sent that certificate by her solicitors in August 2014, and the delay of five months before her claim form was served. Further, there was no affidavit evidence from Mr Di Michiel as to whether the plaintiff had been given advice in respect of time limits under the MACA, and no explanation why no police report was received until 27 September 2014.
8. It was submitted that a further delay had occurred in lodging the claim form of some 20 months, from the time Mr Di Michiel was first instructed by the plaintiff. The evidence of Mr Meoni had provided no explanation why there was a gap of five months between the insurer, QBE, requesting an explanation for the delay in bringing the claim form, and the plaintiff's statement of 11 November 2015.
9. It was submitted that a reasonable person in the plaintiff's position would not have experienced the same delay. The plaintiff here had a previous claim arising from a motor vehicle accident which had resolved within two years. Here, 20 months had passed without the plaintiff being medically examined. A reasonable person in the plaintiff's position would not have experienced such delay.
10. Finally, Counsel for the defendant submitted that in the event that the defendant's submissions were not accepted by the court, the court would not exercise its discretion to grant the plaintiff leave. The evidence as to the location of the accident was confusing, the police were not notified, and a later report was obtained from them. In the meantime, the defendant has disappeared and cannot be located by the defendant's solicitors. The defendant suffers further prejudice in respect of its medical evidence. The plaintiff sought little treatment following the accident and no medico-legal reports were received until after the date of her second accident. The defendant is therefore unable to medically examine the plaintiff to assess her pre- and post-accident condition, notwithstanding the report relied on by the defendant from Dr Harvey Sutton and his opinion that she suffered no injury in the subject accident. For those reasons, the court would not exercise its discretion to allow the time to be extended, as a fair trial could not take place.

Legal principles

1. A "full and satisfactory explanation" is defined in s 66(2) of the MACA as set out in [10] above.
2. To be a full explanation, the Applicant must provide to the Court all relevant information to enable the Court to evaluate the reasons for the delay - see Walker v Howard [2009] NSWCA 408 per Allsop P at [57]. In Dijakovic v Perez, supra, the Court of Appeal held that a full account must include 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" (at [16]).
3. To determine whether the explanation is satisfactory the Court is required to determine whether a person in the position of the claimant would have been justified in experiencing the same delay as the Applicant here and therefore, on an objective standard, whether the Applicant's explanation for the delay is "satisfactory". The "delay" was held in Dijakovic as being the period during which the claimant was late commencing proceedings more than three years after the date of the motor accident, subject to the effect of s 109(2). At [19], Gleeson JA, (with whom Leeming JA and MacCallum J agreed), said: "19 The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which has occurred was reasonably justifiable. The explanation is directed to the delay which occurred to the time when the proceedings were commenced; Karambelas v Zaknic (No. 2) [2014] NSWCA 433 at [17].
4. With respect to the monetary threshold, Gleeson JA stated at [109]: "The primary judge was required under s 109(3)(b) to assess the likely result of damages if the claim succeeds. This involved a predictive exercise. It is well established that the term 'likely' in s 109(3)(b) means a 'real chance' or a 'real prospect'; Sinclair v Darwich [2010] NSWCA 195; Eades v Gunestepe at [10]. As Basten JA explained in Eades v Gunestepe at [10] the relevant shade of meaning of 'likely' in the presence context is conveyed by the 'notion of a substantial, as distinct from a remote chance'; Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at [389] (Mason CJ)."

Determination - has there been a full and satisfactory explanation for the delay

1. The evidence here establishes a complete absence of diligence by the applicant's first solicitor in the prosecution of her claim and protection of the plaintiff's position. Once her present lawyers took over carriage of the matter from 13 September 2013, the evidence establishes a further lack of diligence by the plaintiff's solicitors. From the time they were first instructed, those solicitors had a period of almost two years in which to ensure that the procedural requirements of MACA were complied with, notwithstanding the late claim. The evidence establishes that it took those solicitors one year and nine months to serve a claim form and police report. To allow the time for bringing proceedings to expire, and to fail to properly advise the plaintiff in relation to that time limitation, was less than satisfactory.
2. Fortunately for the plaintiff, the defendant's solicitors did not reject her late explanation notice within the time proscribed, and therefore the defendant was deemed to have accepted her late claim application on 23 November 2016. The plaintiff's solicitor made a frank admission that it was only when he received the defendant's second s 81 notice denying liability on 1 April 2016, that he turned his mind to the question of the proceedings being out of time. This demonstrated a complete lack of diligence on his part in protecting the plaintiff's position.
3. In Smith v Grant, supra, Basten JA (with whom Handley and McColl JJA agreed), said, in relation to whether the solicitor's failure to ensure proceedings were instituted within time affected the question of whether a full and satisfactory explanation for the delay in making the claim had been provided, as follows: "58 Hodgson JA made some additional remarks (referring to Blackburn v Allianz Australia Insurance Limited (2004) 61 NSWLR 634) with which Mason P agreed. The first related to Foster AJA's view that the satisfactoriness of the explanation was confined to compliance with the second sentence in the definition. He agreed that in principle it was not, but continued at [54]: 'However, if the delay experienced by the claimant is one which a reasonable person in the position of the claimant would have been justified in experiencing, and if a full explanation for the delay is given by the claimant and the claimant's advisers, I find it difficult to envisage any circumstances in which the explanation would not be considered full and satisfactory. In particular, I do not think unsatisfactory conduct by the legal advisers would have this effect, although of course it could be relevant to whether it is just to grant the extension.' 59 Figliuzzi v Yonan [2005] NSWCA 290 also considered provisions in the 1988 Act. The facts of the case differed significantly from other authorities, in that the delay in question was caused by the failure of the claimant to obtain any legal advice. This was determinative of the outcome, which was adverse to the claimant. McColl JA stated the test, after referring to authority including Russo in the following terms at [128]: 'While the question in each case such as this is whether the claimant has provided an explanation for delay … that question is to be determined by the hyperthetical objective standard invoked by the requirement that the claimant's explanation be tested against the standard of 'a reasonable person in the position of the claimant' … 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."
4. I accept the plaintiff's evidence that she relied on her solicitors' advice and conduct in progressing her claim. I do not accept the defendant's submission that a delay of two months between August and October 2014, caused by the plaintiff failing to obtain a medical certificate from her treating doctor, contributed in any substantial way to that delay. I am therefore satisfied on all of the evidence that the explanation given by the plaintiff for the delay is full. In evaluating whether that explanation was also satisfactory, a reasonable person in the plaintiff's position would not have acted any differently. When her first solicitor failed to progress her claim, the plaintiff changed solicitors. She made regular inquiries as to the progress of her claim and was at no time advised of the time limits for bringing either a claim or commencing proceedings. I am therefore satisfied, in the sense required by s 109(3), that the explanation was satisfactory.

Determination - the damages threshold

1. The predictive exercise in assessing the likely result of the plaintiff's damages claim involves an assessment of the evidence upon which the plaintiff will rely at trial. As set out above, that evidence comprises the two reports of Dr Giblin, and a report from Ms Mullen, occupational therapist. Dr Giblin assessed the plaintiff as suffering an 8% whole person impairment on the basis of the injuries she received to her neck, and left and right shoulders. In respect of her future treatment expenses, he gave the following opinion: "Her ongoing medical management will remain conservative and symptomatic and directed by her family doctor. These medical costs will be similar to those expensed over the last six months on a pro-rata basis and required for at least a further six months."
2. In respect of future treatment expenses, the plaintiff incurred minimal treatment expenses prior to her second accident in August 2015 and there is no evidence before me so as to evaluate her ambit claim of $36,000.00. It is therefore likely that an award for any future treatment would be modest indeed.
3. Dr Giblin gave the following opinion in respect of domestic care: "Directly as a result of her subject injuries, it is my view that this lady requires a minimum of three hours per fortnight physical assistance in terms of her heavy domestic responsibilities. This amount of assistance will increase as her injuries deteriorate and if her domestic responsibilities are enlarged."
4. I accept the defendant's submission that that opinion would likely be ruled inadmissible at trial, applying Boral Bricks Pty Limited v Cosmidis, supra. It does not rely on the kind of expertise normally attributable to an orthopaedic surgeon.
5. The report of Ms Mullen notes that the plaintiff employed a cleaner for three hours per week following her previous motor vehicle accident in 2009 for pre‑existing neck pain and headaches. After the subject motor vehicle accident in 2012, she modified her domestic tasks and her eldest son assisted her. Thereafter, in the opinion of Ms Mullen: "Her symptoms appear to have been aggravated following each subsequent MVA, so 50% assistance or 1.5 hours assistance per week is recommended following each MVA."
6. The predictive exercise has to take into account the fact that at trial, evidence can be adduced by the plaintiff and the care-givers so as to establish the need for and duration of domestic care and assistance provided. The plaintiff is still a relatively young woman (aged 22 at the time of the accident, and now aged 27). She has four young children to care for and relies on evidence that establishes that her ability to carry out heavy household chores has been substantially compromised.
7. In McConachie v Pack [2004] NSWCA 148, the Court of Appeal held that mathematical precision in the calculation of gratuitous domestic care services damages is impossible, and the question is largely one of impression (at [20]). Here, the plaintiff brings no claim for past gratuitous domestic care service as she does not pass the threshold contained in s 141B(3) of the MACA. Here, the additional domestic services, if any, are being provided by the plaintiff's son and her mother. She would be required at trial to satisfy the court of both the need for those services, and whether they would be foreseeably required to be provided by a commercial provider - see Miller v Galderisi [2009] NSWCA 353 at [19] - [21].
8. Further, the plaintiff's claim is likely to be substantially discounted by virtue of the fact that prior to the motor vehicle accident, she already had an established need of three hours domestic care per week. If Dr Giblin's opinion is ruled inadmissible, she will be reliant upon the evidence of Ms Mullen, which does not support an additional three hours, but rather, splits apportionment for the present need between her 2012 and 2015 motor vehicle accidents.
9. The plaintiff's claim at best would therefore be in respect of a loss of 1.5 hours per week, at approximately $40 per hour. Given her life expectancy, this would result in an award of damages in the sum of $60,000.00 approximately. I therefore accept the defendant's submission that the likelihood of her receiving damages beyond the proscribed threshold ($112,500.00) as being remote rather than "a real chance".
10. I am therefore not satisfied the total damages of all kinds are likely to be awarded to the plaintiff as proscribed by s 109(3)(b). In those circumstances, leave of the court for the plaintiff to commence proceedings must not be granted.

Determination - discretionary matters

1. Contrary to what I have decided above, if the plaintiff was able to satisfy both tests in s 109(3), I would not have accepted the defendant's submission that the court should not exercise its discretion to extend time based on prejudice suffered by the defendant. The plaintiff's late claim explanation had been accepted by the defendant. Any delay in progressing her claim was caused by her solicitors' lack of diligence, and not her own. The defendant had the opportunity of having the plaintiff examined by Dr Harvey-Sutton, who opined that she suffered no injuries in the subject accident. Further, clinical records were available on which the plaintiff's case could be thoroughly tested. As held by McColl JA in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347: "For a trial to be fair, it need not be perfect or ideal …"
2. Whilst it is unnecessary for me to decide, I am not persuaded that the defendant would suffer significant prejudice in conducting the trial. Whilst attempts to locate the defendant himself have as yet been unsuccessful, the means for locating him have been by no means exhausted. Further, the means are available by reference to the plaintiff's treating records, for the defendant to obtain opinions on the existence of, and extent of, any injuries suffered by the plaintiff. I would therefore not have refused to exercise the court's discretion on those grounds.

Conclusion and orders

1. I am satisfied that the plaintiff has provided a full and satisfactory explanation for the delay in bringing her claim. However, the plaintiff has not satisfied the damages threshold contained in s 109(3)(b) of the MACA as explained above. On that basis, it is mandatory that the court not exercise its discretion to grant the relief sought. If I was otherwise satisfied, I would have proceeded to exercise that discretion and grant the relief sought on the basis that a fair trial could have taken place.
2. I therefore order as follows: 1. The plaintiff's Summons is dismissed. 2. The plaintiff is to pay the defendant's costs of the Summons.

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 February 2017