The appellant's specific submissions
109 I will now deal with the specific submissions of the appellant, set out at paragraphs [32]-[41] above, insofar as what I have already said does not implicitly deal with them.
110 There was no requirement to lead evidence from Mr McInerney. Section 109(3) requires the claimant to provide an explanation. That did not require Mr Howard or by late 2006 his tutor, Mr McInerney, to actually swear the affidavit. The explanation was given through the evidence of others.
111 I do not agree that Mr Day's evidence was deficient. It was said that his affidavit did not otherwise explain what attempts he made to obtain instructions. It can be taken that his affidavit set out all relevant matters. A complaint was made that he did not say what advice was given to the respondent's relatives about the effect of delay. I do not think that in the circumstances this was relevant to the full explanation. As I have already indicated the evidence was tolerably plain that Mr Day made clear before the expiration of the time the importance of the three year period and the evidence was otherwise clear as to the relevant impecuniosity of the mother and sister.
112 It was not necessary for Mr Day to explain why he funded some disbursements and not others. There is no suggestion that he was obliged to do so.
113 The appellant asserted that the delay from the obtaining of Mr Schneering's report on 15 May 2006 and the first attempt at commencing proceedings on 3 October 2006 and then the original notice of motion filed on 16 March 2007 revealed unexplained delays. I think this is somewhat unrealistic. Given the normal exigencies of practice and life and in circumstances otherwise explained I do not think that a full explanation required individual explanation of these periods.
114 Nor do I consider that the explanations by Ms Wales and Ms McInerney were inadequate. The evidence of their resources is not detailed. However, sufficient evidence existed to draw the conclusion, as his Honour did, that the family were relevantly impecunious.
115 I do not think that the circumstances revealed an effective decision by mother and sister to allow the limitation period to expire. It was not their decision to make. They did not make it. What they recognised was their inability to take matters further in the absence of an ability to fund the preparation of the case.
116 The challenge to the finding in the last sentence of [45] of the reasons that it could be inferred that Mr Day's reluctance to press the first set of experts at Intersafe Group for a report may have been due to his belief that neither the sister nor the mother could pay for such a report if a demand for repayment was made might be seen as legitimate. Nevertheless, I do not think it affects either the fullness of the explanation or its satisfactory character by reference to the posited reasonable person in the position of Mr Howard.
117 Specific challenge was made to the finding by the primary judge that the explanation of the mother and sister that they had insufficient money to pursue the claim was adequate. Ms McInerney, the mother of Mr Howard stated that she could not afford to pay the disbursements. She said that it was only because Mr Day was prepared to help fund the disbursements that the case had been able to progress. She said that she simply hadn't been able to afford to pay for the various reports that were needed to take the case forward. She recalled receiving correspondence from Mr Day. She recalled Mr Day saying that there was not much that could be done unless an expert report could be prepared. She said that she was "literally at [her] wits end as to what would happened with the case as the family simply could not afford to pay for the disbursements". She recalled Mr Day advising that an accident reconstruction report could cost something in the order of $10,000. She said "we simply did not have that sort of money." She was speaking for the family. She was not cross-examined.
118 Ms Wales, Mr Howard's sister, gave evidence in her affidavit that she separated from her husband in April or May 2003 and moved out of the matrimonial home. She recalled receiving a letter in 2003 that it would cost $10,000 to obtain an expert report. She said that she simply could not afford to pay that kind of money. She had a small child. She said she was trying to make ends meet as best she could and that did not have any spare money to pay disbursements incurred by Mr Day. She moved addresses and may have missed some correspondence for that reason. She did not use an email address to which some correspondence was sent. She said that she did not contact Mr Day as she believed that the case was not going forward as the family could not afford to fund the cost of the expert report and she believed that Mr Day was not in a position to provide such funding. She was not cross-examined.
119 There was ample material on which the primary judge could conclude that the family was impecunious and was not in a position to progress the report because of lack of funds.
120 In those circumstances, it was plainly open to the judge to make a finding at [61] that it must have been made clear to Mr Day at the early conference that neither the claimant's mother nor sister had funds to pay for the investigation.
121 I do not consider that his Honour was incorrect at [34] in saying that from August 2006 the matter proceeded expeditiously. That was an available conclusion.
122 In my opinion, the conclusion of the primary judge that the explanation was full and satisfactory was both open and correct.
123 I would dismiss the appeal with costs.
124 CAMPBELL JA: I agree with Allsop P, and make the following additional comments.
125 If a mentally incapable adult has a right to sue concerning an event that caused his or her incapacity, the chose in action that constitutes that right to sue is an asset of the mentally incapable person. In the absence of an enduring power of attorney that the incapable person executed before becoming incapable (and there is no such power of attorney in the present case), the only way in which someone can acquire actual legal authority to act on behalf of the incapable person before proceedings are started in court is by being appointed as manager of the estate of the incapable person, or of the particular asset of the estate that comprises the chose in action. The course of appointing a manager to deal with a right to sue of an incapable person has on occasions been followed in the Protective List of the Equity Division. One such case was P00029/01 (NSWSC, Windeyer J, 6 August 2001, unreported), a decision upheld on appeal (R v P [2001] NSWCA 473; (2001) 53 NSWLR 664, though the matters in issue on the appeal did not relate to the appropriateness of the application itself). For an adult, during the time relevant to this case, it was an order of either the Supreme Court or of the Guardianship Tribunal for management of the estate under the Protected Estates Act 1983 that was the relevant way of gaining that authority, as appointment of a guardian under the Guardianship Act 1987 conferred powers relating to the person of the incapable person (section 16 Guardianship Act), but not relating to their property.
126 An incapable person cannot sue in court except by a tutor (UCPR 7.14), and Mr Howard had a tutor from the time of commencement of the proceedings. It is unnecessary to consider the extent, if any, of the legal authority a tutor acquires to bind the incapable person merely in consequence of having himself or herself appointed tutor (Haines v Leves (1987) 8 NSWLR 442 at 449-51; Ex parte Davis (1901) 1 SR (NSW) (L) 187; sections 75, 76 Civil Procedure Act 2005; Arabian v Tufnall and Taylor Ltd [1944] KB 685), as the time that is relevant to the present application came to an end no later than when the proceedings were commenced. It is true that section 66(2) MAC Act talks of conduct "from the date of the accident until the date of providing the explanation", but section 66(2) is a quasi-definition that is intended to apply in several different types of circumstances. The relevant delay in the present case is delay in commencing proceedings, bearing in mind that under section 109(2) time does not run during a particular period after a claim has been referred to the Authority. Events after the proceedings were commenced do not bear upon that particular delay.
127 During the whole of the time until the proceedings were commenced the action that Ms Wales, Ms McInerney and Mr Day were taking in the interests of Mr Howard was action that they had no legal authority to take in a way that would bind him. Had they had legal authority and responsibility to enforce his legal rights their action (and inaction) might possibly in law have been treated as his action - though any question of the extent to which the actions and inactions of a properly appointed agent affects the running of time under section 109 should be left for a case in which it arises. What matters for present purposes is that when they had no authority to act as his agent that simple equation of positions cannot be made. That they tried, sporadically and within their financial limitations, to help Mr Howard is part of his position, but it is likewise part of his position that they had neither legal power nor legal obligation to do so, every bit of assistance that they gave him was in the nature of a gift, and they were free to cease helping him at any time.
128 I agree with the orders proposed by Allsop P.
129 MACFARLAN JA: I agree with Allsop P.
130 YOUNG JA: I agree with Allsop P, but I wish to make some observations of my own with respect to one matter.
131 Section 109 of the Motor Accidents Compensation Act 1999 (the "MAC Act") provides that in the circumstances of the present case, the Court is not to extend the time for commencing proceedings unless the claimant provides a "full and satisfactory explanation" to the Court for the delay in commencing proceedings.
132 Section 66(2) then defines what the legislature means by a "full and satisfactory explanation" by a claimant for delay by saying that it is a reference (1) 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"; and (2) that a "reasonable person in the position of the claimant … would have been justified in experiencing the same delay".
133 So far as (1) is concerned, although as Allsop P has pointed out, there is room for a contrary view, it has now been accepted in the authorities that the words "including the actions … of the claimant" mean that conduct of persons additional to the claimant must feature if relevant; see eg Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at 165-166 [43] per Giles JA.
134 As to (2), a uniform approach has been taken that the delay in the particular case before the court must be measured objectively against the delay that would have occurred had the claimant been identical with a hypothetical reasonable person.
135 Of course, at least to a degree this is smoke and mirrors. As Murphy J pointed out in another context (provocation in murder cases) in Moffa v The Queen [1977] HCA 14; 138 CLR 601 at 625-626, a so-called objective test of the reasonable or ordinary person was really a fantasy because those who adhere to it really have to exclude individual peculiarities of the accused which are significant.
136 However, whatever its defects, the legislature requires courts to consider a particular claimant's delay against a hypothetical delay.
137 The basic problem with the second part of the MAC Act's requirement is what is meant by the position of the claimant. Does it mean that the hypothetical person must possess every characteristic of the claimant including the claimant's wealth or poverty, the assistance or non-assistance of friends and relatives, does it mean that all of what one might call the individualistic characteristics of a claimant must be ignored or does the court take account of some though not all of such characteristics?
138 There would seem little argument that in this sense the physical makeup of the claimant must be transferred to the hypothetical reasonable person. That includes the age, sex and capacity of the claimant. I consider that the cultural background of the claimant, at least within limits, is also transferred across. However, the difficulty I have is how far one transfers the circumstantial attributes. By "circumstantial attributes" I mean the fact at one end of the scale that the claimant is a minor aged 17 years who is a millionaire with the availability of both family and professional assistance and at the other end, a person who does not speak English, who is poor and friendless.
139 I have received some limited assistance from examining the cases dealing with provocation in the law of crime. Section 23(2)(b) of the Crimes Act 1900 defines conduct capable of amounting to provocation as "conduct of the deceased … could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill … ".
140 The cases on that section and analogous sections in other States, New Zealand and England make it clear that that section sets up an objective test, but as Mr Yeo pointed out in the his article "Ethnicity and the Objective Test in Provocation" (1987) 16 MULR 67 at 68:
"While maintaining the objective test, the courts have … allowed its gradual erosion by attributing some of the characteristics of the particular accused to the 'ordinary person'. Such characteristics include age, sex, physical disability, religion and ethnic derivation."
141 No-one has become particularly upset about this erosion, but there are statements making the obvious point that if the whole of the characteristics of the offender are to be integrated with the concept of the ordinary person, then the ordinary person test becomes displaced (The Queen v McGregor [1962] NZLR 1069 at 1081 and The Queen v Dutton (1979) 21 SASR 356 at 375 per Cox J).
142 In the provocation cases, a distinction is made between the ordinary person who is of the same age, sex, cultural and religious background as the accused and the ordinary person. However, if the accused has some specific defects/"qualities" of character such as to quote from the joint judgment of the High Court in Stingel v The Queen [1990] HCA 65; 171 CLR 312 at 332, "for example, [if] a person is obsessively jealous or extraordinarily excitable and pugnacious" then those attributes are not transferred across to the hypothetical ordinary person.
143 The Court of Criminal Appeal in this State, Samuels JA, Enderby and Loveday JJ, in Hamdi Baraghith (1991) 54 A Crim R 240, had to consider the position of an Egyptian who was found guilty of murdering his Australian born wife despite his defence of provocation. At 244, Samuels JA, with whom Loveday J agreed, said that, when considering the formula "An ordinary person in the position of the accused" the relevant attributes or characteristics of a particular accused are to be ignored in deciding whether the accused's response was that of an ordinary person. Enderby J, in a very detailed judgment, gave detailed reasons for the contrary view.
144 The cases on provocation, see eg Stingel at 328 and The Queen v Webb (1977) 16 SASR 309 at 313, make the point that the test for provocation is a comparison with the ordinary person, not the reasonable person and that this is a matter of significance. The provocation cases thus must be treated with some care.
145 They also have limited use because obviously enough, whether the accused is rich or poor or has relatives that will assist is not a matter that is at all relevant in provocation.
146 Thus, returning to the instant case, when one is comparing the claimant to a reasonable person in the position of the claimant, by analogy of reasoning with the provocation cases, one transfers across the basic characteristics of the claimant to the hypothetical reasonable person, that is, the claimant's age, sex, cultural background and capacity. One does not transfer across the claimant's particular emotional characteristics such as his or her ability to control anger, be a wishful thinker or dreamer, a persistent ditherer or a person who is well known to be slow in reaching a decision or taking action.
147 However, this is still of little help in determining how far a person's resources are to be taken into account. In view of the diverse views in the cases on associated aspects of the problem, this must be approached on first principles.
148 It would seem to me on first principles that if one has a person with disabilities, such as a child with parents or guardians, or an incapacitated person who has a manager, guardian or committee, that there is identity with that person who has a legal duty to act in the best interests of the incapable person. However, is the situation different where the incapable person does not have anybody who is legally bound to so act?
149 This question must be approached by reminding oneself of the object of the exercise. That is, to measure the delay experienced by this claimant with the delay that would have been experienced by the hypothetical reasonable person. How can one do this unless one places the hypothetical reasonable person not only in the shoes of the claimant but also with his abilities and disabilities and in his home surrounded by his or her friends and relations?
150 In my view it is virtually impossible to construct a model of a reasonable or ordinary person for the purpose of assessing comparable experience of delay unless one does take into account factors like a person's friends and relations and their (limited or unlimited) capacity and ability and willingness to assist.
151 Obviously there are other ways of looking at the problem and, indeed, when one takes those sorts of characteristics into account, one weakens the objective test which the legislature plainly intended should be applied. My earlier comments on objective tests mean that I am not overly concerned about this. Further, one may otherwise get a false result as the primary judge pointed out, why should the assistance of impecunious relatives and an unpaid solicitor put the claimant in a worse position than a brain-damaged plaintiff with no such assistance.
152 The delay has to be considered by having a full account of what brought it about, including the conduct of the claimant and others. One then has to take that into account and say, if that delay in the circumstances of that activity or non-activity had occurred in the case of a reasonable person with no funds who is brain damaged and with relatives of limited means, would the same or greater delay have been experienced?
153 Accordingly, in my view, the primary judge reached the correct conclusion and the appeal should be dismissed with costs.
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