Taylor v Chown

District Court of NSW|2010-04-23|Before: Mr J

Pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 the plaintiff is given leave to commence proceedings out of time; 2. The time for the commencement of the proceedings is extended to 23 May 2010; DECISION: 3. These proceedings are to be listed and heard together with District Court proceedings numbered 2556 of 2009; 4. The plaintiff is to pay the defendant's costs of the summons seeking leave to proceed, such costs to be deferred until the conclusion of the proceedings; 5. The exhibits may be returned; 6. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: LIMITATION OF ACTION - Motor Accidents Compensation Act 1999 - whether full and satisfactory explanation provided for delay in pursuing claim - whether requirements of s 109(3)(a) and (b) are satisfied - whether the defendant has established significant prejudice justifying refusal of grant of leave to proceed

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Campbell v United Pacific Transport Ltd [1966] Qd R 465 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Commonwealth of Australia v Smith [2005] NSWCA 478 Harika v Tupaea [2003] NSWCA 332 CASES CITED: Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Mason v Demasi [2009] NSWCA 227 Smith v Grant [2006] NSWCA 244 South Western Area Health Service v Gabriel [2001] NSWCA 477 Sydney City Council v Zegarac (1998) 43 NSWLR 195 The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 Walker v Howard [2009] NSWCA 408

PARTIES: Raylene Helen Taylor (Plaintiff) Philip Chown (Defendant)

COUNSEL: Mr A Canceri (Plaintiff) Mr J Guihot (Defendant)

SOLICITORS: CMC Lawyers (Plaintiff) TL Lawyers (Defendant)

This is an application brought by the plaintiff pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 ("MAC Act") by which leave is sought to commence proceedings beyond the statutory 3 year limitation period.

The plaintiff has been involved in two motor vehicle collisions, the first being on 16 August 2003 and the second being on 20 October 2005.

This application is concerned with the first incident that occurred on 16 August 2003. The defendant in the proceedings arising from the second incident took no part in these proceedings.

The summons seeking leave to proceed was filed on 20 July 2009. The proceedings were listed for call-over on 30 October 2009, at which time a hearing date for the summons was allocated for 19 January 2010. On that date the plaintiff was not available for cross-examination on her affidavit due to late notice having been given by the defendant to require her attendance. The hearing was therefore stood over part heard to 23 April 2010. On that date the hearing of the summons proceeded.

The following issues arise for determination: Issue 1: Whether the plaintiff has provided a full and satisfactory explanation for the delay in commencing her proceedings : s 109(3)(a) of the Act;

Issue 2: Whether the total damages of all kinds, liable to be awarded to the plaintiff if she were to succeed in the proceedings, are likely to exceed 25 per cent of the maximum amount awardable under s 134 of the Act;

Issue 3: Whether, if leave were to be otherwise granted, the defendant is likely to suffer significant prejudice so as to disentitle the plaintiff to a grant of the leave sought.

A short summary of the background facts is set out as follows.

On 16 August 2003, whilst she was on her way home from work, the plaintiff was involved in a motor vehicle collision. This occurred when her stationery vehicle was hit from behind by the defendant's vehicle. That collision forced the plaintiff's vehicle into collision with another stationery vehicle that was in front of her own vehicle. She claims these collisions occurred as a consequence of the negligence of the defendant.

The plaintiff claims that in the 2003 collision, she suffered injury to her cervical, thoracic and lumbar spines as well as injuring her shoulders, including generalised bodily trauma. The plaintiff sought medical consultations from time to time in respect of these problems. The cost of the consultations and of the treatment have been met by the workers' compensation insurer of her employer.

Section 109(1)(a) of the Act requires that the time for instituting proceedings without leave in respect of such injuries was within 3 years. That period expired on 16 August 2006. The plaintiff made no CTP claim in respect of that collision until June 2007.

On 20 October 2005 the plaintiff sustained injury in a second motor vehicle collision. This was in circumstances where a vehicle was driven in reverse out of a driveway, then straightened up, but onto the incorrect side of the roadway, and then driven forward into head on collision with the vehicle the plaintiff was then driving. The effects of that collision involved similar injuries to those sustained in the 16 August 2003 incident, thereby giving rise to a claim that the 2005 injuries aggravated the residual effects of the injuries sustained in 2003.

It was not until June 2007 that the plaintiff sought legal advice in respect of both of these incidents. Very shortly thereafter, she lodged CTP claims with respect to both incidents, albeit outside of the time required for doing so.

The defendant in the proceedings arising out of the 2005 incident raised no procedural objections to the plaintiff proceeding with her claim in respect of that incident.

The defendant in the present proceedings claims that the plaintiff has not complied with the requirements for the provision of a full and satisfactory explanation for the delay in bringing her claim in respect of the 2003 incident. That defendant also claims irremediable prejudice arises due to the lateness of the claim, and has argued that the plaintiff should not be permitted to proceed with her claim arising out of the 2003 incident.

The nature of these objections, and the statutory framework within which they arise and require consideration, necessitates setting out some detail of the relevant circumstances.

There were almost 300 pages of affidavit material tendered on the application. In the paragraphs that follow I set out a summary of those affidavits.

Affidavits tendered on behalf of the plaintiff in support of the application

The affidavit of the plaintiff, Mrs Raylene Taylor sworn on 26 October 2009 was tendered : Exhibit "A".

The plaintiff's affidavit annexed a statutory declaration sworn by her on 25 June 2007, encompassing some 61 paragraphs in which she set out her explanation for the delay in bringing these proceedings. That statutory declaration was used for the plaintiff's Application for Special Assessment (CARS Form 5A) which was lodged with the Claims Assessment and Resolution Service (CARS) of the Motor Accidents Authority (MAA).

The plaintiff's affidavit also annexed a certificate dated 23 March 2009 by Claims Assessor Holz issued in accordance with s 96(3) of the MAC Act certifying that a late claim could be made by the plaintiff in accordance with s 73 of the MAC Act. The plaintiff's affidavit also annexed the reasons for decision dated 23 March 2009 by CARS Claims Assessor Holz setting out her reasons for the decision concerning a Special Assessment pursuant to s 96 of the MAC Act accepting the plaintiff's explanation for the delay in lodging her claim.

The plaintiff was cross-examined by Mr Guihot concerning the content of some of her affidavit. I will refer to the detail of the matters raised by the plaintiff's affidavit and in her evidence when setting out my reasons in connection with my consideration of Issue 1.

First affidavit of the plaintiff's solicitor, Ms Kristel Hacker, sworn 29 October 2009

The first affidavit of the plaintiff's solicitor, Ms Kristel Hacker, was sworn on 29 October 2009. It was tendered as Exhibit "B". That affidavit was later supplemented with Exhibit "D" to complete an incomplete photocopying of a relevant medical report. Ms Hacker's first affidavit set out the history of her work in the matter on behalf of the plaintiff. The affidavit also annexed claim forms, correspondence and medical reports.

The second affidavit of Ms Hacker, was sworn on 29 March 2010. It was tendered as Exhibit "C". Ms Hacker's second affidavit summarised the course of her further enquiries concerning the documentation of the plaintiff's claim, including payments schedules and correspondence.

Affidavits tendered on behalf of the defendant in resistance of the plaintiff's application

Affidavit from the solicitor for the defendant, Ms Tain Moxham, sworn 19 November 2009

The affidavit of the defendant's solicitor Ms Tain Moxham, sworn on 19 November 2009 was tendered as Exhibit "1". That affidavit set out a selected chronology of events and annexed the relevant personal injury claim form completed by the plaintiff. It also annexed a short factual statement from the defendant, a copy of the plaintiff's statutory declaration, a copy of the statement of particulars in District Court proceedings numbered 2556 of 2009 brought by the plaintiff in respect of the injuries she sustained in the collision on 20 October 2005, some medical reports and some related correspondence.

Affidavit from the solicitor for the defendant, Ms Katherine Toshack, sworn 19 March 2009

The affidavit of the defendant's solicitor Ms Katherine Toshack, sworn on 10 March 2010 was tendered as Exhibit "3". That affidavit annexed correspondence concerning a claim for psychological injury being made by the plaintiff. The defendant also tendered reports from a clinical psychologist, Mr Wenzel, dated 16 and 18 October 2009, concerning the assessment of that claim.

I now turn to a consideration of the issues calling for decision in this application.

Issue 1 - Whether a full and satisfactory explanation has been provided

At the resumed hearing of the application on 23 April 2010, the defendant confined the period for which it required a full and satisfactory explanation, to the interval between 29 October 2007 and 23 March 2010. The significance of those dates is the period between when the Principal Claims Officer of CARS advised the plaintiff's solicitor to lodge an Application for Special Assessment on the issue of whether a late claim could be brought and when CARS Assessor Holz issued her s 73 and s 92 certificates permitting the claim to go forward.

Although the period for explanation has now been confined, in order to reach an understanding of the fullness and satisfactory nature of the explanation for the delay, it is nevertheless necessary to review the delay in the context that appears from the affidavit of the plaintiff sworn on 26 October 2009. Annexed to that affidavit was a statutory declaration setting out the plaintiff's personal, educational, work, health and social history as well as the descriptions of her perceptions as to the circumstances and consequences of each injury.

The plaintiff described the events of the 16 August 2003 motor vehicle collision. She stated that whilst journeying to her work, her vehicle was struck from behind by the defendant's vehicle with sufficient force that her vehicle was forced into collision with another vehicle that was in front of her own vehicle. Initially, she formed the opinion that she was not seriously injured. She attended her work, she lodged a worker's compensation claim form with her employer but did not attend the family doctor, Dr House, until several days later, at which time she obtained a medical certificate stating that she had suffered a whiplash type injury. Thereafter, she occasionally took medication from time to time, but did not miss any time from work until she became involved in a subsequent motor vehicle collision that occurred on 20 October 2005.

The plaintiff stated that the 20 October 2005 collision occurred whilst she was on her way to work. The driver of the other vehicle involved in the collision had been inattentive and had reversed out of a driveway, crossed the road, straightened up his vehicle, and in doing so crossed onto the incorrect side of the roadway and into head-on collision with the plaintiff's vehicle. As a consequence of the second collision the plaintiff suffered neck and back pain, which she described as becoming progressively worse. Apart from having to initially see another doctor due to the unavailability of her own doctor, since that time, the plaintiff has been under the care of Dr House, who has been providing her with treatment, referrals to other practitioners and medical certificates.

The CTP insurer in respect of the 16 August 2003 incident is Allianz. The CTP insurer in respect of the 20 October 2005 incident is NRMA.

The plaintiff stated that it was her initial belief, based on her dealings with the QBE Insurance claims manager who was handling her 2003 workers' compensation claim file, that if she needed treatment in respect of the 2003 injury, she would be covered for this for the remainder of her lifetime.

On 14 June 2007 the plaintiff had reason to seek advice from her present solicitor, Ms Hacker. The initiating circumstance for seeking this advice was that the workers' compensation insurer, QBE, had denied responsibility for the payment of the account of a specialist to whom the plaintiff had been sent by her general practitioner. The plaintiff said that it was not until she had a telephone conversation with her solicitor, Ms Hacker, that she became aware that she may have legal rights in respect of the 2003 collision. She was informed that any such claim she might lodge would be considered as a late claim for which an explanation would be required.

On about 15 June 2007 the plaintiff attended at the office of her solicitor to obtain advice. In the course of a review of the personal papers she took to that consultation, her solicitor discovered correspondence from NRMA dated 9 November 2005 concerning the 2005 collision. On that occasion, Ms Hacker took instructions from the plaintiff concerning explanations for "the lateness" of the lodgement of claims in respect of these two motor vehicle collisions. The NRMA letter in question was a notification to the plaintiff acknowledging that NRMA had been advised of the 2005 collision, and would be accepting provisional liability. That letter also invited the plaintiff to send to NRMA the accounts for treatment and rehabilitation expenses that she might incur in the six months up until April 2006.

On 19 June 2007, after the plaintiff saw Ms Hacker, she forwarded two completed CTP claim forms for lodgement. A short delay occurred whilst further steps were taken to ensure that these forms were properly witnessed by a Justice of the Peace, as was required.

At paragraph 60 of her statutory declaration sworn on 25 June 2007, the plaintiff set out 9 reasons why she had not lodged her CTP claims before June 2007. Those reasons were as follows: (a) At the time of each of the collisions in question, the plaintiff did not think she had any rights to make claims against the at fault drivers; (b) Beforehand, the plaintiff had not received any advice from police, insurance claims officers, doctors, friends or family members to the effect that she could launch CTP claims in respect of these collisions; (c) Until the plaintiff consulted solicitors on 14 June 2007 she did not know she had any rights to claim in respect of the two collisions in question; (d) Since the 2005 collision, the plaintiff had been taking a lot of very strong painkilling medication which she believed, affected her concentration and motivation; (e) It was only on about 16 April 2007 that her general practitioner, Dr House, had expressed concern to her about the possible permanence and worsening effects of her injuries, sufficient to refer her for a CT scan of her neck and for specialist consultation with Dr Atkinson; (f) The plaintiff did not see Dr Atkinson until the first available appointment on 15 June 2007. She paid for the cost of that consultation herself. Dr Atkinson referred her for an MRI scan of her neck and back in order to determine the extent of the damage to those areas. Accordingly, the plaintiff stated that it was not until about 15 June 2007 that she began to fully appreciate that her neck and back condition had become progressively worse following the 2005 collision and was sufficiently severe to warrant specialist and possibly surgical intervention; (g) Until the plaintiff had spoken to her solicitors in June 2007 she was not aware that there was a six-month time limit in which to lodge a CTP claim form or a three-year time limitation for bringing proceedings in relation to CTP claims; (h) The plaintiff had never lodged a CTP injury claim form before June 2007; (i) As soon as the plaintiff became aware of her legal rights on speaking to her solicitor, she did everything she was required to do to ensure that a CTP claim form was lodged so as not to lose her legal rights.

In further explanation of the fact that she did not initially pursue a personal injury claim in relation to the 16 August 2003 collision, the plaintiff stated that, being a positive person, and not being "a whinger", which I take to be a reference to her having a stoic attitude to injury, she sought to just get on with her life without thinking that she might develop serious problems, knowing that QBE had told her she would be "covered for life" with regard to the 2003 injury.

On 4 July 2007, some 3 years and 10 months after the collision on 16 August 2003, and three years and four months after the date by which the claim should have been sent to the insurer, the claim form for the 16 August 2003 collision was sent to the relevant CTP insurer, Allianz.

On 30 July 2007, the plaintiff's solicitor lodged an application with the MAA for assessment.

On 23 March 2009, MAA Assessor Holz, a CARS Assessor issued a Special Assessment Certificate under s 96 of the Act.

On 3 August 2007, Allianz rejected the plaintiff's explanation for the delays. Thereafter, time was taken up with the administrative requirements of procedural issues, which had to be dealt with.

On 29 October 2007, the Principal Claims Assessor of the MAA advised that before the procedural issues could be dealt with by allocated assessment, the late claim dispute needed to be resolved. A direction was given for the plaintiff to lodge an application for a special assessment by 16 November 2007. There was an administrative delay on the part of the plaintiff's solicitor in doing so and no application for special assessment was lodged within the time specified. The application for general assessment was therefore dismissed by the MAA on 29 November 2007.

These circumstances required the lodgement of a further application for general assessment. That application was eventually lodged on October 2008. On 23 March 2009, CARS Assessor Holz accepted the plaintiff's explanation for the delay as being full and satisfactory. She also accepted that a reasonable person in the position of the plaintiff would have acted in the manner in which the plaintiff had acted in the circumstances. Accordingly, Assessor Holz declared the plaintiff to have been successful in her application to proceed with her claim arising from the collision on 16 August 2003.

On 23 March 2009, CARS Assessor Holz also issued a certificate entitling a late claim to be made, in accordance with s 73 of the MAC Act. That certificate included an amount of the plaintiff's costs assessed in accordance with Motor Accident Compensation Regulation 2008 in the sum of $836 inclusive of GST. Detailed reasons for the decision in the assessment were attached to that certificate.

The question of what constitutes a full and satisfactory explanation for delay has been more recently revisited in Walker v Howard [2009] NSWCA 408. In cases where the plaintiff has full mental capacity, the relevant inquiry is the explanation for the delay, not the explanation of the actions of those acting on the authority of the plaintiff : [52 - 53]. The purpose of the need for the plaintiff to provide an explanation is to enable the court to evaluate the reasons for the delay : [57]. This is in order to determine whether or not the explanation is satisfactory : [58]. If part of the explanation for delay is that the matter was in the hands of the solicitor for the plaintiff, it is also relevant to examine the solicitor's explanation for the delay after the receipt of instructions : [99]. In evaluating the explanation for the delay it must be recognised that since the provisions of s 109(3)(a) and 66(2) of the MAC Act are aimed at controlling late claims, the initial part of the evaluation must favour the insurer : [103], following Smith v Grant [2006] NSWCA 244 : [2006] 67 NSWLR 735, [10] - [11].

In this application, the explanation proffered by the plaintiff's solicitor traced the administrative history of progress of the plaintiff's late application through the MAA administrative processes. Following her retainer by the plaintiff on 15 June 2007, the solicitor for the plaintiff has undertaken a good deal of preparation of the plaintiff's claims. In paragraph 12 of her affidavit sworn on 29 October 2009 she stated: "Between 15 June 2007 to date, I have concerned myself with preparing the plaintiff's case on damages …".

In her affidavit sworn on 29 March 2010 the solicitor for the plaintiff expanded upon that preparation. Between paragraphs 5 and 20 of her affidavit she outlined the tasks she had attended to in this regard between 15 June 2007 and the lodgement with the MAA of a CARS 5A Application for Special Assessment on 10 October 2008. In this regard she acknowledged a delay in securing that lodgement. Her explanation of that delay was: "21. I delayed in lodging the Application for Special Assessment until such time as most of the material and reports that I had requested were available in order to assist in the determination of the Application for Special Assessment and the Application for General Assessment.

In 2007 and at the present time, this firm has a system in place whereby requests for information and documents are regularly followed up with the recipient of the request to ensure that a prompt response is received."

It is clear from the chronology of events in the affidavit sworn by Ms Hacker on 29 October 2009, which annexed much of the products of her enquiries, that the assessment of the claim for leave has been facilitated by the products of these enquiries. I consider these enquiries to have been reasonably made and followed up by the plaintiff's solicitor. It is clear that delays were encountered by the plaintiff's solicitor in obtaining replies to some correspondence including a significant non-reply by a treating doctor. I consider this component of the explanation provided by the plaintiff's solicitor to be full and satisfactory.

In the circumstances, I consider that the plaintiff has provided a full and satisfactory explanation for the delay between 29 October 2007 and 29 March 2010. In that time it is clear that the solicitor for the plaintiff was attempting to put forward an application supported by documentation to demonstrate the merit of the application. I consider that in that period, a reasonable person in the position of the plaintiff, would not have acted differently and would have left the matter in the hands of a solicitor to do just that.

Issue 2 - Whether the total of all likely damages would exceed $77,250

The parties were agreed that for the purposes of the hearing of this application, 25 per cent of the s 134 damages threshold is $77,250. In this application the plaintiff must show that it is likely that on the hearing of the substantive case, the total damages of all kinds will exceed this sum : s 109(3)(b) of the Act.

A schedule of damages was prepared on behalf of the plaintiff which identified and quantified 5 claimed heads of damage which were estimated in an amount of the order of $170,000 : MFI "3". On behalf of the plaintiff it was submitted that this schedule demonstrated that the plaintiff was able to satisfy the requirements of s 103(3)(b) of the Act.

In response to that submission, on behalf of the defendant it was submitted that it was unlikely that damages would be assessed in such a range. In support of the defendant's argument similarities were pointed to in respect of the particulars of claim for injuries, disabilities and damages in respect of these proceedings and the proceedings initiated by the plaintiff in respect of the 2005 incident. In support of that submission the defendant also pointed to the very limited medical evidence and treatment that related to the 2003 incident.

In reply, the plaintiff pointed to the evidence of Dr Oates that was obtained by the defendant, which suggested that the second injury was an aggravation of the effects of the first injury. This suggests that the effects of the first injury still had deleterious effects on the plaintiff when the second injury occurred in 2005. Further, in my view, a reasonable economic loss argument has been identified to show the plaintiff has a core claim for past and continuing diminution in earning capacity which has been respectively quantified at $13,200 and $61,302 due to an inability to take on additional shifts in her role as an assistant in nursing. These amounts, together with the claimed out-of-pocket expenses of $4370, total $78,872 even before the other significant items claimed for future treatment, past and future domestic assistance and claimed superannuation losses are taken into account to reach the argued total in the schedule of the order of $170,000.

The defendant has submitted that there are many assumptions that serve to found the arguments relied upon by the plaintiff. Whilst that is undoubtedly correct, the exercise I must undertake for the purposes of this application is not one which involves a definitive analysis as would take place at a full hearing on the merits, where evidence would be tested and weighed for the purposes of making definitive findings. Instead, this exercise involves a threshold assessment of whether the plaintiff has a real and not a remote chance or possibility of satisfying the threshold required by the section, as explained in Harika v Tupaea [2003] NSWCA 332 per Mason P at [27], where a similar requirement in s 43A of the Motor Accidents Act 1988 was considered.

On behalf of the defendant, Mr Guihot made the formal submission that Harika was wrongly decided and that submission was noted. I am obliged to follow and apply the binding authority of a superior court.

On behalf of the defendant reference was made to matters recorded in the medical histories and the brief evidence given by the plaintiff on the application in order to try and demonstrate that the plaintiff would not satisfy the likely damages assessment requirements of s 109(3)(b). In my view, since the hearing of this summons is not a final hearing of the merits of the claim, such an approach, which involves a credit assessment based on a detailed analysis and cross-referencing of medical histories, unaided by specifically focused explanatory evidence, is an inappropriate means by which to proceed to determine whether the requirements of s 109(3)(b) have been satisfied : Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 and Mason v Demasi [2009] NSWCA 227.

On the foregoing approach, I consider that the medical evidence tendered, together with the particulars of the claim and the argued schedule of damages identified by the plaintiff establishes that in the proceedings arising out of the first injury the plaintiff has a real and not a remote chance of obtaining a verdict in excess of $77,250.

In coming to this conclusion I formed the view that the cross-examination of the plaintiff demonstrated her to be a credible witness who made concessions where appropriate.

Issue 3 - Whether the defendant has established disentitling prejudice

The defendant argued that irremediable and therefore significant prejudice arises in this case, such that the defendant could not achieve a fair trial on the liability and damages issues.

On the issue of claimed prejudice in respect of liability, reliance was placed on the statement from the defendant dated 1 September 2009. That statement was obtained from the defendant by an investigator retained on behalf of the CTP insurer. The statement was Annexure "I" to the affidavit of Ms Moxham. In that document the defendant, a security officer aged 53 years, has stated: "… 3. The little I can recall about this accident after six years is that it was a minimal collision with minimal damage.

I have no recollection of any vehicle been (sic) towed away or police attending the scene.

I do not recall the exact date and day of the accident but it must have occurred in 2003 as I accept the collision must have occurred as per the claim form.

I do not remember talking to any person involved in the accident but I must have because you have my details.

I just remember small rear end collision with the vehicle in front. I have no recollection of any person being injured. We must have exchanged particulars and went on our ways. I do not know of any other vehicles being involved the accident (sic) other than the one in front of my vehicle. …"

No evidence was introduced by the defendant as to when, if at all, he could have been likely to have been able to remember the details of the incident in question such that this might have enabled him to give a more fulsome account, whether within or outwith the prescribed limitation period. The absence of such evidence on this issue is a relevant matter to consider in the exercise of discretion regarding the weighing of potential prejudice or otherwise.

In view of the reference in the defendant's statement to the plaintiff's CTP claim form, it becomes relevant to examine the content of that claim form. It was Annexure "B" to the affidavit of Ms Moxham. Question 15 of the claim form called for the plaintiff to provide a description of how the 2003 incident occurred. In response, she stated: "Turned right of (sic) Sunnyholt Rd into Sackville St in line of traffic stopped at roundabout behind Mr Torres then Mr Chown ran into the back of me pushing me into Mr Torres I beleave (sic) Mr Chown was at fault."

When the combination of the defendant's statement, and the defendant's acceptance in his own statement of the plaintiff's version of events is considered, it is difficult to see what if any prejudice arises on the liability issue for the defendant in this case.

Further, when due regard is had to the fact that the plaintiff had made a contemporaneous claim for workers' compensation arising from the 2003 incident, and the workers' compensation insurer made payments to the plaintiff or on her behalf, I consider it reasonable to infer that the workers' compensation insurer would not have made such payments if it had not been satisfied that the injury occurred in the manner claimed by the plaintiff. There were no attempts made in this application to call upon a subpoena addressed to that insurer for access to any liability investigations it might have made, in order to advance any prejudice arguments relied upon by the defendant in this application.

The defendant also sought to rely upon a claimed inability to investigate, consider and test the plaintiff's claim of having sustained injuries in the 2003 incident, including the inability to test the plaintiff's evidence as to any residual effects of that injury.

In this regard, it is relevant to review and consider a report dated 30 September 2007 obtained from Dr Chris Oates, a consultant occupational physician, to Allianz, the CTP insurer in this case. That report was Annexure "O" to the affidavit of Ms Moxham. In that report, at page 2, Dr Oates set out his record of having taken a history of the relevant events in relation to both incidents. A material extract from that report is as follows: " First accident - She says on 16/08/03, a Saturday afternoon, she was stationary in a Falcon wagon with a towbar with no passengers. She was on her way to work. She was read-ended by a Hiace van at about 20kms per hour but she finds it difficult to estimate the speed. She heard no screech of brakes. She had a seatbelt on. The seat back was not broken. There was a head restraint fitted to the seat. There was no impact injury. She was not knocked out. She went forward and back with the impact. Her car was pushed into a Celica sedan in front of it. The car was pushed forward perhaps one metre.

She was able to get out through her door. She then drove her car on to work which was only one street away. She felt okay at the time. No police or ambulance attended. The car was subsequently written off because the chassis had twisted because of the impact of the towbar.

By Monday, she felt headaches, stiff neck and sore neck with some joint pains in the right elbow and forearm.

She saw her GP, Dr House, on 18/08/03 and was diagnosed with cervical spine pain with decreased range of movement and lateral right epicondylitis. She was then treated with Celebrex and analgesics and had physiotherapy to the neck with ten sessions and she felt a lot better after this. She did home exercises.

Thereafter, she had intermittent stiffness and soreness in the neck. She would take Mersyndol when she had neck pain or headache and was needing up to five tablets a day but not every day and used heat packs.

She lost no time from work. She did light duties for four or five months after the motor vehicle accident and then normal duties.

Second motor vehicle accident - On 20/08/05, she was driving to work at the nursing home for an extra day's work. She was in a Honda Prelude coupé with her daughter in the front seat. She was coming around a left sweeping bend on a 50kms per hour road when a Navarra twin cab utility reversed out of a driveway on the left side of the road and turned to travel towards her. The driver was waving goodbye to his family and did not notice her and was on her side of the road. She braked but he hit her vehicle head-on at about 20kms or so per hour. She had a seatbelt on. Airbags did not deploy. She thinks she may have hit her forehead on the steering wheel but was not knocked out and was not bleeding.

The car was towed away. No police or ambulance attended. She called her husband to come and drive her to work which was a short distance away. She had severe headache and nausea but stayed at work that day.

The next day, she awoke with a stiff neck. She saw Dr Kek, her husband's doctor at Mount Druitt and was certified for light duties and had physiotherapy to the neck on a couple of occasions. She is not sure whether it helped. She was taking Mersyndol and anti-inflammatories. Her car was subsequently repaired for seven thousand dollars.

She never felt that she recovered from the second motor vehicle accident. She had ongoing neck pain and headache and neck stiffness with pins and needles in the right leg to the toes on occasions and in both hands, right more than left, in the shower and in bed at night. …."

The cited excerpt from the history recorded by Dr Oates was not traduced by the defendant on the hearing of this application. For the purpose of the application, I must consider that history, and its implications, at face value.

On a consideration of that history, the plaintiff has given a chronological account of the relevant events concerning her injuries including details of the medical treatment she has obtained and details of the manner in which each injury affected her, including the effects upon her employment and earning capacity.

The defendant called no medical or other evidence to suggest that such a history would preclude a reasonable assessment of the claim the plaintiff sought to make arising from the 2003 injury.

In litigation, delay always carries with it the potential for prejudice. The question is not whether there was the potential for prejudice but rather, whether significant prejudice has been demonstrated to have arisen in the circumstances under consideration.

The defendant bears the evidentiary onus of establishing relevant prejudice. As to the question of the onus of establishing prejudice it is pertinent to note that in a limitation case under the Limitation Act 1969, in Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197 Mason P stated: "… Persuasive dicta in Brisbane South indicate that it is for the party opposing the application to adduce evidence of facts suggesting particular prejudice if the discretion were exercised in the applicant's favour see (at 547), Toohey J and Gummow J citing Cowie .v. State Electricity Commission (Vic) (1964) VR788 at 793 …… Failure to adduce such evidence may draw the unfavourable inference that specific prejudice is absent, due to the fact that it is very much in that parties camp to know the existence, impact and extent of such prejudice."

I remind myself that prejudice is but one of a list of factors in a limitation case : Zegarac per Mason P at p 198. The real question is whether delay has made the chances of a fair trial unlikely : Zegarac per Mason P at p 199, citing Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. Even proof of significant prejudice does not dictate the rejection of an application for extension of time : Zegarac per Mason P at p 199.

The authorities make it clear that there is a difference between a fair trial and an ideal or perfect trial : Commonwealth of Australia v Smith [2005] NSWCA 478. In that context, for prejudice to operate as a bar, it must be shown to be significant so as to render a fair trial unlikely : The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 per McColl JA at [96] following Brisbane; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128; Commonwealth of Australia v Smith [2005] NSWCA 478 and South Western Area Health Service v Gabriel [2001] NSWCA 477.

In the end result, it is for the defendant to show that there are sufficient facts to compel the view that prejudice would result if the plaintiff were given leave to proceed, and it is for the plaintiff to show that the facts relied upon by the defendant to assert prejudice do not amount to material prejudice : Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 per Toohey and Gummow JJ applying Campbell v United Pacific Transport Ltd [1966] Qd R 465 per Gibb J at 474.

On the issue of liability, in this application, all the defendant has pointed to is his imperfect recollection of events leading to the occurrence of the collision in circumstances where, considering his adoption of the plaintiff's description of the occurrence of the collision, a finding in favour of the plaintiff is almost a foregone conclusion, barring evidence along the lines suggesting that a mechanical failure of his vehicle had occurred.

In my view, on the above consideration, there is no evidence showing that significant prejudice arises in respect of liability issues.

On the damages issues, all the defendant can point to in the way of claimed prejudice is that it has been precluded from earlier investigating, and therefore testing, the plaintiff's allegations of injury and residual disability. Given the history recorded by Dr Oates, it is difficult to conceive what the defendant would require in addition to what Dr Oates has summarised. In almost every damages case it is the oral evidence of the plaintiff that stands to be assessed for its credibility. That exercise is undertaken either with or without corroborating records and medical opinions, depending upon the circumstances of the case at hand. In this case, the defendant knows that the plaintiff has had limited medical treatment, as is evident from the workers' compensation payments schedule and the Medicare payments schedule that were annexed to the affidavits. That is a matter that also impacts on the plaintiff's case and does not support a finding of significant prejudice.

Whilst the defendant has shown that a trial of the issues in this case may not necessarily be easy, and may be even difficult, this falls far short of establishing material or significant prejudice. In my view the defendant has failed in this application to establish that it is unable to fairly defend itself in these proceedings. I therefore consider that it has failed to establish any significant prejudice or any prejudice that ought to operate as a bar to the plaintiff's claim being permitted to proceed.

I have determined that the plaintiff has satisfied the requirement of s 109(3)(a) and (b) of the Act in respect of the injuries she received on 16 August 2003. The defendant has failed to demonstrate prejudice in the relevant sense such that leave to proceed should be withheld. The plaintiff is therefore entitled to the orders sought thereby entitling her to commence the proposed proceedings, albeit out of time.

The plaintiff has submitted that the defendant has incurred costs because it unreasonably refused to accept the decision of the CARS Assessor. It was consequently argued that the defendant should pay the costs of the application. Whilst that argument is compelling, I nevertheless consider that in this case, as the plaintiff is the party seeking an indulgence, and as there were periods of delay requiring explanation, the plaintiff should pay the costs of the application. It should be noted that the defendant did make some concessions to confine the period requiring explanation. In all of these circumstances I do not consider it appropriate that the defendant bear the costs.

I make the following orders: (a) Pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 the plaintiff is given leave to commence proceedings out of time;

(b) The time for the commencement of the proceedings is extended to 23 May 2010;

(d) The plaintiff is to pay the defendant's costs of the summons seeking leave to proceed, such costs to be deferred until the conclusion of the proceedings;

(f) Liberty to apply on 7 days notice if further orders are required.

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Judgment (115 paragraphs)

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Cases Cited (13)

Cited By (1)