Tom Atie v Dennis Tonacio

Judgment 1HIS HONOUR : This is a motion by the fourth defendant in proceedings brought by the plaintiff seeking that they be dismissed as against that defendant pursuant to section 73(5) of the Motor Accidents Act 1999 (the Act). 2The plaintiff claims in respect of injuries sustained at about 2:15 am on 21 August 2008. In what might be perceived as the general run of events falling within the concept of motor accidents, the facts alleged are unusual. In the course of submissions counsel described the accident as eccentric. 3Roadworks were being undertaken in the vicinity of the Hume and Cumberland Highways. To enable the works, a traffic diversion was put in place. The plaintiff was employed by a company (Torpoint) and engaged in laying asphalt in order to form a road surface. On the basis that the road was running north and south, the plaintiff was working on the eastern side. A truck driven by the fourth defendant was northbound on the road as diverted and collided with a power pole near the western side of the road causing lines which were supported by the pole to break and, as pleaded, become "four heavy whips which struck the plaintiff". At the time the plaintiff was raking asphalt on the other side of the road. I do not purport to make findings of fact in these regards but to describe the circumstances upon which the claim is based. 4The plaintiff joined as defendants in action the head contractor (Boral), the Roads and Traffic Authority (RTA) as overall controller of the works, the corporation engaged to implement traffic diversion (Able Roadwork) and the fourth defendant truck driver. He has not sued his employer Torpoint. 5Pursuant to section 72 of the Act the plaintiff was required to give notice of his claim to the insurer of the truck (Zurich) within six months after the relevant date, 21 August 2008. That period expired on 21 February 2009. It is not disputed that no requisite notice was given during the prescribed period. 6Following the accident in August, the plaintiff was off work for a short time and returned to light duties which he described as paperwork, driving the spray truck and a small amount of raking. He had consulted his general practitioner about ongoing symptoms and in his affidavit he scheduled some 44 visits to her between August 2008 and October 2010. During this period the workers compensation insurer (not Zurich) was meeting his medical and associated expenses and, although he contemplated that he might have some further workers compensation entitlement, he elected not to pursue that thought as he said that he feared for the security of his employment. 7He remained working until he was dismissed in November 2010. 8The Act makes provisions concerning the making of claims after the expiry of six months above referenced. Section 73(1) permits what is specified as a late claim if the claimant, in this instance the plaintiff, provides a full and satisfactory explanation for the delay in making the claim. It is provided that the explanation is to be provided in the first instance to the insurer but no point in that regard was raised in argument. 9"Full and satisfactory" explanation is defined in section 66 of the Act as 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 comply with the duty or would have been justified in experiencing the same delay. The duty is to give notice as above described. 10The plaintiff consulted his present solicitors on 5 November 2010. The precise dates are not entirely clear but this approximately coincided with his dismissal from employment and his obtaining assistance from his Union to complain to Fair Work Australia in respect of the dismissal. He testified and was not challenged on his deposition that the Union suggested that he go and talk to a solicitor. 11To confine the issue to its essence, counsel for the fourth defendant commendably limited his argument by conceding that, insofar as full and satisfactory are distinguishable elements of explanation it was not contended that the explanation tendered by the evidence on behalf of the plaintiff was not full. The fourth defendant did contend that the explanation was unsatisfactory in the absence of necessary notice of claim from 21 February 2009 when the six-month period after the incident expired until 5 November 2010 when the plaintiff consulted solicitors. Although formal notification did not take place until some six months after the last mentioned date, the fourth defendant accepted that full and satisfactory explanation for delay beyond that date had been provided. 12It is common ground therefore that the issue to be determined on the motion is whether a satisfactory explanation has been given for the failure to notify the claim between 21 February 2009 and 5 November 2010. This, as observed by McHugh J in Russo v Aiello (2003) 215 CLR 643 is a factual matter rather than a legal issue and requires a value judgment having regard, of course, to the stated objects of the Act specified in section 5. 13I accept the evidence that the plaintiff had limited education, leaving school without completing the School Certificate and that his employments have involved labouring or manual work which did not enhance his formal education so as to equip him to deal with legal issues or like complexities. 14He was cross-examined about a prior injury in 2004 when he injured his shoulder at work. In due course he had consulted solicitors about this and his workers compensation entitlements were ultimately settled for payments which he received. The plaintiff responded to questioning with what impressed me as candour. I conclude that he would be aware that, if he was conscious of some deprivation of entitlement, he knew that he could consult a solicitor for assistance. 15I am however satisfied that it never occurred to him that potential rights arising out of the incident in August 2008 were governed by the Act of which I accept he had never heard of. His own knowledge gave him the focus upon what he believed were his workers compensation rights. I am satisfied that the person in his position, that is a labourer of limited formal education, would have contemplated, if his mind turned to it, that he had sustained a work injury as distinguished from what might generally be regarded as a traffic accident. There was no trigger, as it were, which would reasonably have set such a person on a path of looking for a remedy outside of the workers compensation scheme. 16Until November 2010 his workers compensation entitlements were being met and it would require a perceptive analyst with more than a smattering of legal encounter rather than a person in the position of the plaintiff, to look for a remedy beyond workers compensation. That conclusion is fortified by the affidavit of the plaintiff's solicitor in which the failure of trained lawyers to assess this "eccentric" incident as a motor accident requiring statutory compliance superadded to the existence of workers compensation entitlement has been acknowledged. 17Counsel for the fourth defendant referred to Figliuzzi v Yonan [2005] NSWCA 290 where it was held that delay was not fully and satisfactorily explained where the claimant believed that entitlements were limited to workers compensation because she was injured in a car accident on a journey to work. Leaving aside that that claimant, although a clerk, worked among lawyers, the present case is distinguishable in the indirect involvement of a vehicle rather than being a typical motor accident. Counsel also referred to Tan v Basaga [2010] NSWSC 1143 where the claimant, although educated, came from a different cultural background and knew nothing at all about litigation for personal injury as available in this jurisdiction. His failure to give notification was excused. 18The thrust of submission was that, comparatively, the plaintiff fell between these two examples. The plaintiff is, in my view, in a stronger position to have his failure excused than the claimant in Tan . I have mentioned his lack of formal education and background. Such experience as he had was limited to workers compensation entitlements and while these were being met there was nothing to inspire him to make enquiries about rights of which he was entirely unaware. Nor in my opinion, for the reasons just given, would a person in his position reasonably set about making what would seem to be hypothetical enquiries because, as the plaintiff pithily deposed "I could not act upon information which was not in my head". 19I am satisfied that the defined issue should be determined in favour of the plaintiff. 20I formally rule that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim and the motion is dismissed. 21Liberty to apply in respect of costs.