Walker v Howard

5 Mr Howard did not commence legal proceedings against Mr Walker within three years of the accident. Having failed to do so, it became necessary for him to seek the leave of the court to commence proceedings. He did this by summons filed on March 2007. A Judge of the Common Law Division (Hoeben J) made orders granting leave having found that Mr Howard had provided a "full and satisfactory" explanation for the delay. This is an appeal from those orders, brought by leave granted on 24 February 2009.

6 The Motor Accidents Compensation Act 1999 (NSW) (the "MAC Act"), s 109 provides for time limits on the commencement of court proceedings as follows: " s109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person - the date of death,

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 2 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.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim." 7 The phrase "full and satisfactory explanation" in s 109(3)(a) is defined by the MAC Act, s 66(2) as follows: "(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 would have failed to have complied with the duty or would have been justified in experiencing the same delay." 8 The words "claim" and "claimant" are defined by the MAC Act, s 3 as follows: "claim means a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

claimant means a person who makes or is entitled to make a claim."

9 The appeal raises important questions of statutory interpretation of the MAC Act, ss 66(2) and 109(3)(a). A bench of five judges was assembled because of disagreement in decisions of the Court in relation to these provisions and provisions of an earlier cognate statute, the Motor Accidents Act 1988 (NSW) (the "MA Act"), ss 40 and 52.

10 It is necessary to set out the facts as found by the primary judge as to how Mr Howard's claim was handled and why there was a delay that meant proceedings were not commenced within three years of the accident. The facts were set out in three affidavits: of Mr Howard's sister, Ms Wales; of his mother, Ms McInerney; and of Mr Day, a solicitor in Wagga Wagga. There was no cross-examination of any deponent. The affidavits were not voluminous and in some respects exiguous. Nevertheless, the following factual history can be taken from them.

11 Ms Wales, first sought legal advice in regard to her brother's accident in about September 2001 when she contacted Mr Day. Ms Wales was concerned about how the family could pay Mr Howard's accumulating medical expenses. Ms Wales also instructed Mr Day to investigate whether Mr Howard might have a claim against anyone for the injuries suffered in the accident.

12 On 12 November 2001, Mr Day completed and lodged a personal injury claim form with the third party insurer of Mr Walker, the Transport Accident Commission. The form was signed by Ms Wales who disclosed that she was the sister of the injured person who was "unable to sign due to injuries". 13 Mr Day then began to gather evidence that he thought necessary in order to assess whether there was a viable claim. Between January and March 2002, Mr Day communicated with the New South Wales Police Service requesting documents and photographs related to the accident. Mr Day received copies of police statements on 7 March 2002.

14 On 11 June 2002 Mr Day met with Ms Wales and Mr Howard's mother, Ms McInerney, at his office, to discuss the contents of the statements received from the police. The family had indicated to Mr Day earlier that year (in March at a meeting with Mr Day) that they were still concerned about continuing demands for payment from creditors and the mounting debts.

15 After the meeting with the family, Mr Day continued to collect evidence related to the accident. On 16 June 2002, he went to the wrecking yard to inspect Mr Howard's car and attended the scene of the accident. From 27 June to 18 September 2002, Mr Day communicated with Wagga Wagga City Council attempting to gain access to the plans for the roundabout under freedom of information legislation. These plans were finally obtained, for a fee, on 18 September 2002. 16 Mr Day also formed the view that an expert report on liability prepared by engineers would be needed to assess the claim properly. Once the police photographs of the accident were obtained on 1 July 2002, on 18 July 2002 Mr Day briefed Intersafe Group ("Intersafe") to produce a report. The Council plans of the roundabout necessary for the report were forwarded to Intersafe on 23 September 2002, less than a week after Mr Day obtained them from Council. Mr Day received assurances from Intersafe in November 2002 that the report was nearing completion. In February 2003, however, Mr Day was notified by Intersafe that production of the report would be further delayed due to serious health problems (a heart attack) of the person completing the report, a Mr King. On 4 March 2003 Mr Day's secretary was advised that Mr King had been discharged from hospital. On 31 July 2003 Mr Day wrote to Intersafe asking when the report would be available. The same request was made by Mr Day's secretary on 8 August 2003. The same request was again made by Mr Day on 19 and 22 August 2003. Finally, on this last occasion, 22 August 2003, Mr Day withdrew the brief for the report from Intersafe.

17 On 3 September 2003, Mr Day met again with Mr Howard's sister and mother. After this meeting, Mr Day organised to brief another firm of engineers to produce an expert report. On 18 September 2003, Mr Day briefed Mr Brown from Civil and Forensic for this purpose. In November 2003, Mr Day sent this firm photographs and documents they requested to prepare the report.

18 Up until this point, Mr Day's firm of solicitors had been bearing all the costs incurred in the investigation into the possible claim for Mr Howard. The judge found, and it was not in contest, that from Mr Day's first meeting with the family, he knew that they would not be able to meet disbursements. From 22 September 2003 to 16 March 2004, on a number of occasions Mr Day wrote to Ms Wales seeking reimbursement of the costs of Intersafe. On 9 October, he wrote to Ms Wales asking for $3,500 on account of disbursements. On 26 November 2003, he wrote to Ms Wales advising that unless funds were provided he would not be able to proceed. As the judge found, Ms Wales was the person giving instructions to Mr Day. On 8 January 2004 Mr Day wrote to Ms Wales asking to see her. He received no reply. By email of 16 March 2004 to Ms Wales sent from Mr Day's office the following was said: "Herewith our letter of 9 October 2003. We remind you that the 3 year limitation period expires on 19 July 2004 and unless we can get the investigative report commissioned and underway we cannot advise that a claim would be successful."

19 Mr Day said that he advised Ms Wales and Mr McInerney on a number of occasions that proceedings could not be commenced without an expert's report. Ms Wales gave evidence that she understood this. 20 It was Ms Wales' evidence that she only recalled receiving one of the letters, being the one dated 9 October 2003. She gave evidence that she had changed house address and the email address used by Mr Day's office was not in regular use. She also said that at the time she received the 9 October letter advising of costs of up to $10,000 she could not afford to pay any of the outstanding costs, having recently separated from her husband and become the sole carer of their child.

21 Meanwhile, in October and November 2003, Mr Day provided Mr Brown of Civil and Forensic with documents and information required.

22 Having received no response to communications with Ms Wales, Mr Day did nothing further in relation to the matter from November 2003 and 26 April 2005; other than to send the letter of January 2004 and the email of March 2004.

23 The limitation period expired on 19 July 2004 during this time.

24 On 26 April 2005, Mr Day's secretary was advised by Civil and Forensic that there would be a delay in producing the report due to health problems of family members of the person preparing the report. The context of receiving this information was that Mr Day's secretary had been enquiring about another matter. No report was produced by Civil and Forensic. At some point between 26 April and 15 December 2005, Mr Day decided to retain another firm of experts to investigate the matter.

25 Having received no answers from Ms Wales, on 27 April 2005 Mr Day wrote instead to Mr Howard's mother, requesting payment of the disbursements in the matter. Mr Day by this time had spent $2,571.90. He also requested $3,500.00 on account of future disbursements. Although she received the letter, Ms McInerney did not respond. Her evidence was that when she received the letter she did not have the money to pay the outstanding costs. She said that over the years Mr Day had requested her to pay some disbursements to help fund the case, but she was unable to do so.

26 The primary judge found that, at some point between 27 August 2005 and 15 December 2005, Mr Day decided to continue funding the matter on behalf of Mr Howard despite his family's failure to respond to requests for payment. By December 2005, Civil and Forensic had not produced a report. So, on 15 December 2005, Mr Day briefed Mr Schnerring at another firm of engineers, Jamieson Foley, in a third attempt to get an expert report. A completed report was received by Mr Day on 5 June 2006. (Mr Day having himself paid $2,489.40 from his office account for the report.)

27 A conference with Mr Howard's sister and mother and Mr Day was then held on 4 July 2006 to discuss a possible claim. This was the first time Mr Day had met Ms Wales and Ms McInerney since 3 September 2003. At the conference it was decided that Mr Howard's half-brother, Mr Craig McInerney, would act as his tutor in a claim against Mr Walker and Wagga Wagga City Council. On 9 August 2006 a consent to act as tutor was sent to Mr McInerney.

28 The primary judge found that from August 2006 the claim proceeded in an expeditious manner. A statement of claim was filed in the Supreme Court on 3 October 2006, with Mr Walker as first defendant and Wagga Wagga City Council as second defendant. A notice of motion was bought in those proceedings seeking leave of the Court under the MAC Act, s 109 to continue proceedings out of time. On 10 January 2007, a certificate issued under the MAC Act, s 108(1) stating the claim was exempt from assessment by the Principal Claims Assessor. It was then realised that leave of the Court was required before proceedings could be commenced against Mr Walker. So, on 29 March 2007, a notice of discontinuance was filed in the 2006 proceedings against Mr Walker and the summons from which the appeal is brought was filed soon after. The summons was heard before the primary judge on 12 November 2007 and 2 May 2008 and judgment delivered on 13 May 2008.

29 The parties were agreed that on 11 December 2006, an application for exemption from the CARS process was served by the respondent's solicitor upon the appellant's solicitor. A certificate exempting the matter from the CARS process was granted on 10 January 2007. The reasoning of the primary judge 30 The primary judge considered that the explanation of the delay was full and satisfactory. His Honour reasoned as follows.

(a) To the extent that it was necessary to examine the conduct of those acting on behalf of the claimant, there was a doubt whether Ms Wales, Ms McInerney and Ms Day could be strictly so classified. None had a power of attorney to act for him; and since he was not an infant they were under no legal obligation to act for him (reasons [42]). (b) The focus of the sections (ss 66 and 109) was the conduct of the claimant not on the conduct of the solicitor, Mr Day (reasons [43]).

(c) The "conduct" referred to in s 66(2) referred not only to the conduct of the claimant, but also to those acting on his behalf: Diaz v Truong [2002] NSWCA 265; 37 MVR 158 at 165 [39]. Despite the "unanswered questions as to Mr Day's motivation" (that is in funding the action), the account was "full in the sense [of] … complete" (reasons [44]). (d) If Mr Day, Ms Wales and Ms McInerney were not to be regarded as the claimant's agents, the nature of the latter's injuries provided a full explanation of the delay (reasons [45]).

(e) If they were to be regarded as the claimant's agents, the impecuniosity of Mr Howard's mother and sister when confronted with the costs of the proceedings to be investigated was a complete explanation. It could be inferred that Mr Day's reluctance to press Intersafe for a report may have been due to the belief that the family could not afford to pay (reasons [45]).

(f) Section 66(2) was to be understood as focussing upon a reasonable person in the position of the claimant, that is having the claimant's special characteristics - here brain damage. In this respect, his Honour applied the approach of Hodgson JA in Diaz v Truong at 178 [96] and Mason P in Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at 437 [61]. This interpretation did not include agents and representatives of the claimant "in the position of the claimant." One consideration of weight for the primary judge was why the assistance of the impecunious relatives and the unpaid solicitor should put Mr Howard in a worse position than a brain damaged plaintiff with no relatives. The "albeit desultory" steps of the relatives here should not disadvantage him (reasons [48]-[52] and [65]).

(g) Nevertheless, the primary judge went on to examine the explanation of Mr Howard's sister, the mother and the solicitor finding the explanation of each satisfactory in the sense that it justified the delay. The principal reason for this was the impecuniosity of the family and the unwillingness of the solicitor for a period to fund the proceedings from his own pocket (notwithstanding a preparedness to do so at different times) being reasonable (reasons [56]-[59]).

(h) In coming to these conclusions, the primary judge paid particular regard to the distinction drawn by Gleeson CJ in Russo v Aiello [2003] HCA 53; 215 CLR 643 at 646 [7]. In dealing with the earlier provision using similar language, Gleeson CJ noted that the MAC Act required justification for delay, not demonstration that no prejudice had been caused. It was justifying delay , not excusing it , that was the subject of the satisfactory explanation (reasons [55] and [60]).

(h) The primary judge examined the particular criticisms of the handling of the matter by Mr Day. The delay between July 2002 and August 2003 was explained by the illness of the expert and the reluctance of Mr Day, inferred by the primary judge, to press too forcefully lest interim payment was called for. The delay thereafter was primarily caused by the impecuniosity of the family and their failure to respond to correspondence. The primary judge concluded that Mr Day was justified in not paying further moneys of his own and in not pressing the second firm of experts more strongly. This was particularly so, his Honour found, when the report being sought was of a nature to ascertain whether there was a claim. This conclusion was not affected by his decision in December 2005 to resume paying disbursements. This was generous of him, but did not make his earlier unwillingness to do so unreasonable (reasons [61]-[64]).

(i) The primary judge summarised his approach at [65] of his reasons: "As indicated, I do not interpret s 66(2) to expand the concept of 'in the position of the claimant' to include agents and representatives of the claimant. However, if that approach is correct, the explanation provided by the claimant's sister, mother and Mr Day was not only fully but also satisfactory for the purposes of s 109 MACA. In my opinion the delays which occurred were something which reasonable persons in their position 'would have been justified' in experiencing. In reaching that conclusion I would have had regard to the objects of the Act 'to provide compensation for compensable injuries' and to 'encourage the early resolution of compensation claims'."

The appeal 31 The notice of appeal raised four grounds, in the following terms: "1. His Honour erred in finding that a full explanation had been given to the Court for the delay in commencing proceedings in accordance with Section 109 (3)(a) of the Motor Accidents Compensation Act 1999 (judgment para 44).

2. His Honour erred in finding that a satisfactory explanation had been given to the Court for the delay in commencing proceedings in accordance with Section 109 (3)(a) of the Motor Accidents Compensation Act 1999 (judgment para 56).

3. His Honour erred in concluding that the concept of 'in the position of the Claimant' in Section 66(2) of the Motor Accidents Compensation Act 1999 did not include agents and representatives of the Claimant (judgment para 65).

4. His Honour erred in the exercise of a discretion pursuant to Section 109 (3)(a) of the Motor Accidents Compensation Act 1999."

The appellant's submissions 32 In relation to grounds 1 and 2, the appellant submitted that there had been neither a full nor a satisfactory explanation by reason of the following:

(a) There had been no evidence led from Mr McInerney, the respondent's tutor. It was submitted that it could be concluded that he had given no instructions and taken no part in pursuing the respondent's case.

(b) Mr Day's evidence was deficient in a number of respects: (i) Mr Day gave evidence in his affidavit that he had difficulty in obtaining instructions from the respondent and in particular his sister and mother. Those instructions were sought from the sister on 8 January 2004 and the mother on 27 April 2005. It was said that Mr Day's affidavit did not otherwise explain what attempts he had made to obtain instructions. It was also submitted that his affidavit did not say what advice was given to the respondent's relatives about the effect of any delay on the proceedings. (ii) Mr Day referred to difficulty of obtaining moneys for disbursements. Mr Day subsequently funded those disbursements. It was submitted that there was no evidence as to why the decision to fund the disbursements himself was not made at an earlier time so as to allow the case to proceed. In this respect, the appellant referred to one part of the reasons of the primary judge ([32]) where his Honour said " [t]he evidence does not make clear when or why Mr Day made] that decision ". The appellant further submitted that the decision by Mr Day in September 2005 to recommence funding the matter himself was not explained. It was said that there was a failure by the solicitor to explain why this had not occurred earlier. (iii) The report of Mr Schnerring of Jamieson Foley was dated 15 May 2006. The first attempt at commencing the proceedings was by way of statement of claim filed on 3 October 2006 some five months later. The original notice of motion seeking the leave of the court was not filed until 16 March 2007. The appellant submitted that the five and ten month delays, respectively between the expert report and these two events was unexplained and the explanation was therefore neither full nor satisfactory.

(c) It was submitted that the explanations given by Ms Wales and Ms McInerney were inadequate in that significant delays remained unexplained. Reliance was in particular placed on the following: (i) The appellant submitted that the delay up to September 2003 when Mr Brown from Civil and Forensic was retained was unexplained. It was further submitted that how Mr Brown came to be retained when the evidence suggested that the respondent's relatives were unable to find disbursements "remains a mystery". This also was said to render the explanation unsatisfactory. (ii) The appellant referred to the period between 12 November 2001 and 30 September 2003, being 22 months, during which period it was submitted months passed without much occurring on the matter and the delays were unexplained by the respondent's mother and sister. It was submitted that the lack of money of Ms McInerney demonstrated that she had made a decision not to proceed with providing further funds or instructions to Mr Day. It was also submitted, in this context, that Ms McInerney had not given evidence as to her lack of available assets.

(d) It was submitted that the circumstances revealed an effective decision to allow the limitation period to expire. Reliance was placed on what was said by Ipp AJA in Itek Graphix Pty Limited v Elliott [2001] NSWCA 442; 54 NSWLR 207 at 225 [91] to the effect that a deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. 33 It was submitted that the explanation was not full because it did not give sufficient or satisfactory evidence as to why moneys could not be obtained from any other source such as other relatives of the respondent or, for that matter, Mr Day. 34 The appellant challenged 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 well have been due to his belief that neither Ms Wales nor Ms McInerney could pay for such a report if a demand for some prepayment was made. It was submitted that this was a speculation and not an inference and in this respect the appellant referred to Russo v Aiello at 648 [13] (per McHugh J). 35 The appellants specifically challenged the finding of the primary judge at [56] that the explanation of the respondent's mother and sister that they had insufficient money to pursue the claim was adequate. 36 The appellant also challenged the finding made by the primary judge at [61] that it could be inferred that it must have been made clear to Mr Day at the conference in 2001 that neither the Mr Howard's mother nor sister had funds to pay for such an investigation. 37 Specific challenge was made to the conclusion in the last sentence of [34] that from August 2006 the matter proceeded expeditiously. 38 In relation to grounds 3 and 4 the appellant submitted that the conduct referred to in the first sentence of s 66(2) referred to conduct of the mother, sister and solicitor. The appellant referred to Smith v Grant [2006] NSWCA 244; 67 NSWLR 735 at 743 [33] per Basten JA and Diaz v Truong at 165 [39] per Giles JA. 39 The appellant submitted that the second sentence of s 66(2) in referring to a reasonable person in the position of the claimant refers not only to the claimant but also to those acting on his or her behalf. In this respect the appellant referred and relied upon Diaz v Truong at 165-166 [43] per Giles JA and Buller v Black at 441 [94] per Giles JA. 40 The appellant submitted that the word "claimant" in both the first and second sentences of s 66(2) should be given the same meaning. Thus the conduct of those acting for the claimant (here namely the solicitor, his mother and sister) must be examined for the purposes of the giving of the explanation required. It was submitted that it did not matter whether Mr Day, Ms Wales or Ms McInerney strictly speaking had authority from the incompetent respondent. What the Act required, it was submitted, was an examination of the actions that explained why a delay occurred. In this context the broadness of the approach requires that any person who has been involved in the preparation of the claim and now can give relevant evidence must be capable of having their actions scrutinised for the purposes of giving a full account of the reasons for delay. 41 It was submitted that ultimately what was to be decided was whether there was justification for the delay such that a reasonable person in the position of the claimant would have suffered that delay: Russell v Aiello at 646 [7] and 651 [25]. Thus, it was submitted, that unless the evidence demonstrated with frankness and completeness the reason or reasons why the delay occurred then a court is not in a position to determine whether or not a claimant, no matter what his or her condition, would be justified in experiencing the delay. A court, it was submitted, cannot make a finding about whether a claimant is justified in experiencing a delay without analysing the actions of those acting on his or her behalf.

The respondent's submissions 42 The respondent submitted that on the evidence brought before the primary judge which was not subject to cross-examination his Honour was entitled to conclude that there had been a full and satisfactory explanation for the purposes of grounds 1 and 2 of the appeal. 43 As to grounds 3 and 4, the respondent stressed that it was the explanation of the claimant that was required by the section and its assessment was by reference to a person in the position of the claimant. 44 The respondent submitted that the weight of authority supported three propositions adequate to support the primary judge's approach:

(a) The test of whether an explanation is satisfactory is to be viewed from the position of the claimant, and not the claimant's solicitor (or others who may act on a claimant's behalf);

(b) An assessment of whether the explanation is satisfactory does not require any normative judgment about the conduct of the claimant's solicitor or agent;

(c) Although a solicitor's or an agent's acts or omissions may form part of a "full explanation" an examination or exploration of the blameworthiness (if any) of the solicitor or agent is not required.

45 It is convenient to begin with the context and text of the MAC Act, ss 66(2) and 109. From that perspective, the differences, to the extent they exist, between some of the existing authorities can be better appreciated and resolved. 46 Section 109 takes its place in Chapter 4 of the MAC Act dealing with motor accident claims. The objects of the MAC Act are set out in s 5. They include the encouragement of early resolution of compensation claims: s 5(1)(b). Chapter 4 contains a regime for claims handling by insurers and for assessment and resolution of claims. Restrictions exist on the taking of proceedings in court: Part 4.5, s 108. The MAC Act discloses an intention to encourage the timely bringing forward, and the timely and fair resolution, of motor accident claims.

47 Section 109 deals with the commencement of proceeding. A claimant, (he or she being the person who makes or is entitled to make a claim: see s 3), is not entitled to commence proceedings more than three years after the date of the motor accident except with the leave of the court. That leave must not be granted unless, relevantly, the claimant provides a full and satisfactory explanation to the court for the delay: see ss 109(1)(a) and (3)(a). A claimant who is legally incapacitated because of age or mental incapacity is nevertheless required to provide a full and satisfactory explanation for the delay: see s 109 (4). The Limitation Act 1969 (NSW) does not apply: see s 109 (5); so there is no suspension of time running because of incapacity or disability: cf the Limitation Act, s 50F. 48 As is made clear by the first sentence of s 66(2), the explanation to be given for the delay is from the date of the accident until the provision of the explanation. 49 Section 109 says nothing as to how an incapacitated claimant may bring proceedings. That is left to the law dealing with such a matter. Here, Mr Howard, being brain damaged and thus incapacitated, sought to bring the proceedings through a tutor, his half brother, Mr McInerney. Mr Howard remains the claimant: see s 109(4); but s 109(3)(a) and (4) recognise that Mr Howard must nevertheless provide a full and satisfactory explanation for the delay. Given that it will be essential for someone in Mr Howard's position to have a tutor to commence and conduct proceedings on his behalf, it can be readily accepted that the responsibility for assembling and presenting the explanation will fall to the tutor and those assisting him or her. He remains, however, the claimant. 50 Section 66(2) has two sentences. They should be read together as a composite whole intended to give content to the notion of a full and satisfactory explanation. 51 The first sentence is open to the textual and syntactical construction that it is restricted to a full account of the conduct of the claimant, including his or her actions, knowledge and belief. This construction would have been clearer with a comma after the word "belief". The preposition "of" could be seen to relate both to the word "conduct" and to the phrase "actions, knowledge and belief". The absence of the comma could be seen as in aid of flow of the sentence. 52 This construction of the first sentence might be seen to limit the scope of the required explanation to the conduct of the claimant personally, without regard to those who have acted or purported to act on his or her behalf. The authorities in this Court to which I will come are clear, however, that the explanation or full account referred to in the first sentence is not restricted to the conduct of the claimant personally.

53 The mentally incapable claimant seeking to commence proceedings by and through a tutor is therefore obliged (in the sense implicit in s 109(3)(a)) to provide a full and satisfactory explanation of "the conduct", being an account of the conduct of the claimant and others in so far as his or her and their conduct is relevant to the explanation for the delay. The explanation must be full and satisfactory and address matters relevant to the explanation for the delay. The terms of s 66(2) do not direct the enquiry to the nature or extent of the legal authority of others to act on behalf of the claimant nor do they restrict the enquiry to the acts or omissions of persons with legal authority to act on behalf of the claimant. It is the explanation for the delay that is called for, not an explanation of what those with actual authority from the claimant did. 54 The claimant, to provide the requisite explanation, must address acts and omissions relevant to the delay "from the date of the accident until the date of providing the explanation." 55 These attributes of the "full and satisfactory explanation" in the first sentence of s 66(2) do not mean that the word "claimant" is any broader than its defined meaning. The claimant is responsible for providing the explanation: s 109(3)(a). If, as here, he or she is mentally incapacitated, that practical responsibility will fall to his or her tutor on his or her behalf. That the explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, does not broaden the meaning of "claimant" in s 66(2) to "the person who makes or is entitled to make the claim and any person acting or purporting to act on his or her behalf." No warrant appears in the text or structure of the MAC Act or these provisions for this interpretation. 56 Thus, the phrase "including the actions, knowledge and belief of the claimant" should not be read as "including the actions, knowledge and belief of the claimant and any person acting or purporting to act on his or her behalf." 57 The meaning of "full" in s 66(2) is to be understood in the context of the purpose of the provision and the explanation: to enable the Court to evaluate the reasons for the delay. Thus all relevant information to that end is required.

58 One then turns to the second sentence of s 66(2). It is here that the differences of opinion amongst Judges of the Court have arisen. The sentence deals with the satisfactoriness of the explanation. A number of questions arise as to its meaning from the disagreements in the authorities and from the argument before this Court. The questions arise principally from two disagreements in the authorities. 59 The first disagreement concerns the meaning of "claimant" in the second sentence and whether the focus of the enquiry in the second sentence is narrower than in the first sentence; and whether the enquiry in the second sentence is focussed solely upon the acts and omissions of the claimant himself or herself. 60 Secondly, and related to this first disagreement, there is disagreement as to whether the test for satisfactoriness in the second sentence of s 66(2) is sufficient, or only necessary, for the conclusion by the court that the explanation is satisfactory. 61 These disagreements arise most acutely in the context of claimants who have an incapacity, in particular a mental incapacity. 62 Before turning to the authorities and seeking to resolve these difficulties, some further comments arising from the text and context of the MAC Act are appropriate. 63 As to the claimant who lacks capacity, it must be recognised at the outset that Parliament intended (see s 109(4)) that such a claimant provide a full and satisfactory explanation. As I have said, the explanation is provided in support of an application for leave to bring proceedings, at which time a tutor or person with control of the affairs of the claimant will likely be in charge of the application for such a claimant. (Henceforth, I will refer to the person who may relevantly be responsible for the affairs of an incapacitated claimant as a "guardian".) The test posited in the second sentence of s 66(2) is not, however, to be understood only by reference to the time of bringing the proceedings. Whether the reasonable person in the position of the claimant would have been justified in experiencing the delay depends upon an examination of a broader time period, the period of the same "delay". 64 The positing of a "reasonable person in the position of the claimant" clearly expresses a degree of objective analysis. This is in the statutory context which includes a mentally incapable person providing (at or about the time of seeking to commence proceedings) an explanation for the delay. It can be accepted, as Lord Hoffmann said in Adams v Bracknell Forest Borough Council [2004] UKHL 29; [2005] 1 AC 76 at 86 [33] that the word "reasonable" imports an objective standard, but that the degree of objectivity may vary according to the assumptions made about the person in question and that the breadth of those assumptions and the extent that the assumptions reflect the actual characteristics of the person in question will depend upon the reasons why the law imports an objective standard. 65 The "position of a claimant" with a legal or physical disability necessarily, it seems to me, includes that disability, at least if it be caused by the motor vehicle accident in question. It would be an extraordinary legislative policy that would deprive a claimant brain damaged by the accident and in a coma for three years of the possibility of an action for damages because a reasonable person suffering some other injury, but with full mental capacity, would not have failed to commence proceedings and would not have been justified in experiencing the same delay. The nature and character of the injury caused by the accident in question must be taken to be part of the "position of the claimant." 66 That the position of the claimant in which the reasonable person is placed includes the injury making the claimant mentally incapable leads to a degree of difficulty in conception and operation of s 66(2). It must be recognised, however, that Parliament has seen fit by s 109 not to suspend the running of time during such disability. Time continues to run against the mentally incapable claimant; and the mentally incapable claimant must provide a full and satisfactory explanation complying with s 66(2). By way of contrast the Limitation Act 1969 (NSW), s 50F provides as follows for disability: "S 50F Effect of disability on limitation period

(1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person: (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person.

(3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person.

(4) In this section: capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)). guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Yong Persons (Care and Protection) Act 1998 for the minor. incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (a) any disease or any impairment of his or her physical or mental condition, or (b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or (c) war or warlike operations or circumstances arising out of war or warlike operations.

protected person means: (a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or (b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009.

(5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies." 67 Under s 109, time runs against any incapacitated person whether having a capable parent or guardian (using that word here as used in s 50F) or not, whether mentally incapacitated or not and if so, whether a protected person or not. The rigour of that position is ameliorated or conditioned by two factors: the removal of any limitation period under the Limitation Act and the vesting of power in the court to grant leave to proceed after three years if a reasonable person in the position of the claimant would have been justified in experiencing the same delay. 68 The artificiality involved in the degree of objectification of a mentally disabled person's position flows essentially from the evident Parliamentary intention to have the same broad evaluative judgment in respect of all claimants, including incapacitated claimants. The framework of that evaluative judgment chosen by Parliament was the fiction of a reasonable person in the claimant's position. That placement of a fictional person in that position can be seen as a means of stating that the court can grant leave if it is reasonable to conclude that the delay was justifiable given this claimant's position. By expressing it thus, I do not seek to impose a different test than chosen by Parliament. Rather, if one recognises both the artificiality that may be involved in placing a reasonable person into the position of a mentally incapable claimant, and also if one recognises the desire of Parliament to assess such a person's right to sue by reference to an objectively reasonable standard by which to judge the justifiability of the delay, the test can be seen as a construct for the making of the evaluative or normative judgment based on reasonableness about the justifiability of delay by reference to the position of the claimant.

69 The phrase "position of the claimant" is not limited in terms to the personal or physical characteristics of the claimant. It connotes aspects of place and circumstance relevant to the enquiry. It is not possible or desirable to seek to identify all the possible characteristics of the claimant that the phrase "in the position of" implies. Nor is it possible or desirable to seek to identify the obverse - all the objective characteristics implied by the phrase "reasonable person". The scope of each is conditioned by the context - injuries from a motor vehicle accident and the explanation of the circumstances of delay in bringing suit in respect thereof. The authorities 70 In Diaz v Truong the Court (Giles JA, Hodgson JA and Foster AJA) dealt with an appeal from orders granting leave to proceed under the MA Act, s 52(4) (in similar terms to the MAC Act, s 109(1)). Under s 52(4B) (in similar terms to s 109(3)), the leave of the court was not to be granted unless the claimant provided a full and satisfactory explanation for the delay. The phrase "full and satisfactory explanation" was given content by s 40(2) (in identical terms to the MAC Act, s 66(2)). The case involved a five year old girl who suffered serious injuries, including brain damage and permanent disability, having been struck down by a car. 71 The proceedings were not commenced within three years. The matter had been entrusted to solicitors within some months of the accident. The primary judge concluded that the explanation was full and satisfactory. The Court, by majority (Hodgson JA and Foster AJA), dismissed the appeal. The essential disagreement between the majority and Giles JA concerned the meaning and operation of the second sentence of s 40(2). 72 There was substantial agreement over the meaning of the first sentence of s 40(2). Giles JA said at 165 [39] that the conduct which was the subject of the explanation was not limited to that of the claimant himself or herself. Hodgson JA substantially agreed with this, saying at 177 [92] that what was required was a full account of the conduct of the claimant and of persons acting on behalf of the claimant, in so far as that conduct was relevant to the delay. Foster AJA at 183 [120] agreed with this approach. There has been no doubting of this approach in the later authorities. 73 As to the concept of a full explanation, Giles JA agreed with Rolfe AJA (with whom Beazley JA and Stein JA agreed) in Mancini v Thompson [2002] NSWCA 38 that the claimant could not pick and choose the information relevant to the delay. All information so relevant was to be provided. Hodgson JA did not express himself differently. Foster AJA expressed himself to similar effect, citing Salido v Nominal Defendant (1993) 32 NSWLR 524 and Guest v Southern (unreported 22 September 1995, Studdert J) for the proposition that "full" meant "complete". 74 The members of the Court expressed three views as to the meaning and operation of the second sentence of s 40(2). 75 Hodgson JA, accepted that the word "claimant" had different meanings in the two sentences, relevantly saying, at 177 [92]-[93]: "[92] … When one comes to the second sentence of s 40(2), the specific reference to 'a reasonable person in the position of the claimant' means, in my opinion, that the focus there is directed solely at the acts and omissions of the claimant himself or herself, and must be judged as against what would have been the actions and omissions of a reasonable person in the position of the claimant, that is having the relevant characteristics of the claimant, in this case a nine year old girl suffering brain damage.

[93] There is force in the submission that this is in effect giving two different meanings to 'claimant' in two different sentences of the one sub-section. However, I think the wording of the second sentence very strongly points to concern with the claimant himself or herself, not other people acting on behalf of the claimant; whereas the requirement of an explanation for the delay, which in some circumstances must be given on behalf of the claimant by other persons, seems to me to require that there be an account of relevant conduct of other persons. To my mind those indications are sufficient to overcome the expectation that the same word will be used with precisely the same meaning in two sentences of the one sub-section." 76 Implicit within these paragraphs was the view of Hodgson JA that the question of assessing satisfactoriness of the explanation was confined to the test in the second sentence of s 40(2). 77 Foster AJA, agreed with Hodgson JA that the "position of the claimant" included the age of the claimant and her incapacitating brain damage. His Honour described the notion of a "reasonable brain damaged infant" as absurd; yet, he said, to ignore the brain damage was to give no work to the phrase "in the position of". Foster AJA reconciled these difficulties by confining (like Hodgson JA) the enquiry of reasonableness in the second sentence to the words in the first sentence "the actions, knowledge and belief of the claimant". At 184 [126]-[127], Foster AJA said: "[126] Doing the best I can, I have come to the conclusion that the second sentence relates back to the words in the first sentence 'the actions, knowledge and belief of the claimant' and requires that these be scrutinized according to a standard of 'reasonableness'. Where the claimant is out of time because his lawyer has allowed this to happen, then the claimant's activities, knowledge and belief must also be examined, to see if he has contributed to this situation. Has he, for instance, failed to answer his solicitor's letters, or changed his address without notifying his solicitor? Has he, having been advised by his solicitor as to the existence of the limitation period, ignored the advice? Conversely, if he has been wrongly advised as to the extent of this period, are there circumstances which would have led a reasonable person to query the advice? Other examples can be envisaged. If the answers to such enquiries point to a failure on the part of the claimant to measure up to the standard of the 'reasonable person', then that failure could require a finding that he was not 'justified' in 'experiencing' the delay, with the result that the delay cannot be satisfactorily explained.

[127] In this situation the words 'in the position of the claimant' have work to do. Although in an unclear manner, they provide an indication of legislative intention that, in the application of the 'reasonable person' standard, regard must be paid to the particular position of the claimant. If the claimant, because of his position, could not be expected to meet the measure of 'a reasonable person', then this objective standard does not apply to him and the disqualification imposed by the second sentence upon his explanation does not arise." 78 Foster AJA, however, at 183-184 [124], disagreed with Hodgson JA that the test of satisfactoriness was confined to the second sentence. At 184 [128], he said the following: "[128] In my opinion, the opponent, who could never be regarded as 'a reasonable person' does not encounter the particular disqualification provided for in the second sentence. Her explanation must still be assessed as to whether it is 'satisfactory' in accordance with the first sentence, read with s.52(4B)(a). Having regard to the reasonable reliance of the family upon the solicitor's advice and the total incapacity of the opponent herself, I am satisfied that the explanation is satisfactory." 79 Giles JA at 165 [40] came to the same view as Foster AJA that the test of satisfactoriness was not limited to the second sentence, which was a necessary, but not sufficient condition. 80 As to the operation of the test in the second sentence, Giles JA disagreed with the approach of Hodgson JA (and implicitly Foster AJA), saying at 165-166 [41]-[43]: "[41] The purpose of 'unless a reasonable person in the position of the claimant would have failed to comply with the duty or would have been notified in experiencing the same delay' in the second sentence is tolerably clear. It is intended to set an objective standard of conduct which the full account of the conduct to which the first sentence refers must achieve. That does not necessarily make the explanation satisfactory, although it is not easy to see why a full account of conduct meeting the objective standard would not generally be a satisfactory explanation.

[42] The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being 'justified in experiencing' a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay.

[43] Hodgson JA, whose reasons I have had the advantage of reading in draft, considers that in the second sentence the focus is directed solely at the acts and omissions of the claimant himself or herself, so that whether the explanation is satisfactory is judged against what would have been the acts and omissions of a reasonable person in the position of the claimant. I respectfully disagree. It does not seem to me congruent with the necessary reading of the two sentences together that the full account of the conduct which by the first sentence may provide the full and satisfactory explanation, the conduct being that of the claimant himself or herself plus that of others through whom the claimant is acting (typically but not limited to a solicitor), is in part disregarded when assessing whether the explanation is a satisfactory explanation. Nor do I think that the wording of the second sentence requires this narrowed focus. The second sentence sets an objective standard. A person can fail through someone else to comply with a duty, and can experience delay because of acts or omissions of another or others through whom the person is acting, (as I have said, experiencing something normally means being subjected to it by the acts or omissions of another or others). That the hypothetical reasonable person is a person in the position of the claimant leaves that person open to the consequences of the acts or omissions of another or others through whom the person is acting." 81 Before examining later cases it is important to be clear about what Giles JA was saying, and was not saying. Giles JA did not say (indeed it would have been inconsistent with his view that the word "claimant" meant the same in both sentences) that the word "claimant" included those acting on the claimant's behalf. His Honour said that the reasonable person in the position of the claimant must be justified in experiencing the delay in the light of the full account of the delay, not just in the light of the acts and omissions of the claimant. 82 Giles JA did not say expressly that the reasonable person in the position of the claimant would not have attributed to it the relevant injury: see 165-166 [43] of his Honour's reason above. His approach to the facts of the case did, however, objectify the injured child to a significant degree. His Honour said, in this context, the following at 169 [60]: "[60] … Applying the standard, and respectfully differing from Hodgson JA, I consider that the reasonable person in the position of the opponent is a person acting through the solicitors, and that the conduct of the solicitors is part of what is considered when assessing whether the reasonable person would have been justified in experiencing the delay. That reasonable person would not have been justified in experiencing the delay." 83 This approach does not widen the meaning of claimant, but it does place the reasonable person in the claimant's position: that position being one assisted by and acting through solicitors. 84 Shortly after Diaz in 2002, in Manderson v Ellis [2002] NSWCA 289; 37 MVR 214, a differently constituted Court of Appeal (Santow JA, Davies AJA and McClellan J, as the Chief Judge then was), dealt with the provision in the context of a brain damaged claimant. Santow JA at 219 [18] discussed Diaz and favoured the view of Foster AJA, saying: "[18] In Diaz … the views of Giles JA and Hodgson JA differ, with Foster AJA generally favouring the views of Hodgson JA. But Foster AJA agrees with Hodgson JA that the second sentence in s40(2) ('a reasonable person in the position of the claimant would have failed to comply with the duty') focuses attention on the claimant, at least to the extent that his particular position in the whole of the factual situation is to be taken into account [125]. But he would require, as would Giles JA, that the explanation also satisfy an objective standard of reasonableness applied to the claimant circumstanced as he was; compare s180 of the Corporations Act with its objective standard referenced to the director 'in the corporation's circumstances'. I would apply that double-barrelled test here, and focus on the explanation the claimant has, not his solicitor, but including under 'claimant' the person in charge of his affairs (Mrs Malm)." 85 The satisfaction of the "objective standard" to which Santow JA referred can be seen as a reference to Foster AJA's view that the satisfaction of the test in the second sentence was not sufficient; the explanation still had to be "satisfactory" for the first sentence. 86 Santow JA and Davies AJA applied Laidlaw v Touma [2002] NSWCA 190; 36 MVR 388 and interpreted "full" as "complete". 87 Davies AJA also expressed agreement with the approach of Foster AJA in Diaz. 88 In Buller v Black, the Court (Mason P, Giles JA and Ipp JA) was dealing with an adult claimant who had no cognitive disability. Mason P referred with approval to relevant paragraphs of Giles JA's reasons in Diaz. Mason P also referred to Mancini and Laidlaw and said "full" meant "complete", that is "warts and all". Giles JA, with whom Ipp JA agreed, referred to his own reasons in Diaz. 89 Later in 2003, the High Court delivered judgment in Russo v Aiello (an appeal from this Court). The case dealt with an adult claimant with no cognitive disability. Gleeson CJ at 645 [4] dealt with the first sentence of s 40(2) in a manner consistent with the approach of all three judges in Diaz: "[4] The concept of a 'full and satisfactory explanation' is, to some extent, explained by s 40(2) , which deals with the two elements as follows. A full explanation is said to be 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 word 'full' takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant. The sub-section goes on to provide that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay." Gleeson CJ recognised at 645-646 [6] that the concept of a "reasonable person in the position of the claimant" could give rise to difficulties. At 646 [7] Gleeson CJ emphasised that the section was concerned with justifying, not excusing, the delay, saying: "[7] … It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration."

90 Gummow J and Hayne J at 662-663 [73]-[74] said the following about the operation of the test in the second sentence: "[73] Moreover, even if it were accepted that the account was relevantly 'full', the conclusion would be open that the claimant's explanation in respect of the period 6 December 1997 to 6 October 1998 was not 'satisfactory' because a reasonable person in the position of the claimant would not have been justified in persisting in such a delay. [74] Whether a 'reasonable person' would have been so 'justified' requires an evaluation by reference to a hypothetical objective standard and in light of the objects of the Act. Part 5 of the Act evinces a legislative intention 'to promote prompt settlement of claims and to encourage forensic diligence'. The statutory scheme, emphasised repeatedly in the provisions to which reference has earlier been made, is to encourage the early investigation, assessment and resolution of claims. The statute in terms indicates that this scheme is intended to advance the interests of claimants in rehabilitation, prompt treatment and prompt payment of lost earnings and the interests of insurers in more accurately predicting claim frequency and formulating premiums. Those objects are sought to be achieved by the imposition of time limits and obligations to act expeditiously on both claimants and insurers." (footnotes omitted)

Though the MAC Act is in somewhat different terms to the MA Act, all of the comments of their Honours as to the purposes of the MA Act are equally applicable to the MAC Act. 91 In 2004, in Blackburn v Allianz Australian Insurance Ltd [2004] NSWCA 385; 61 NSWLR 632, the Court (Mason P, Sheller JA and Hodgson JA) once again dealt with the MA Act, ss 40 and 52. The case concerned a seven year old child, severely injured in a motor vehicle accident in which her mother was a driver. Sheller JA undertook a detailed analysis of the previous authorities. In that analysis, his Honour pointed out an important flaw in the reasoning of Foster AJA in Diaz. Mason P agreed with his reasons. Hodgson JA elaborated in one respect on what he had said in Diaz, in effect expressing agreement with what Foster AJA had said in Diaz as to the necessity, but not sufficiency, of the test in the second sentence of s 40(2) (s 66(2)).

92 Sheller JA, in resolving the case, said that the explanation satisfied both the tests enunciated by Hodgson JA and Foster AJA in Diaz. His analysis, however, in particular at 651-653 [47]-[49] appears to accept that the conduct of the parents or solicitor could be considered in assessing how the reasonable person in the position of the claimant would view the matter. Sheller JA said at [47] and [49]: "[47] … A baby is badly injured in a motor vehicle accident as a result of the driver's negligence. A parent or a solicitor due to indolence or incompetence takes no steps within time to make a claim or commence proceedings. That is the explanation for the delay. But in considering whether that explanation is satisfactory the Court must consider whether 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. An explanation that the parent or solicitor was lazy or incompetent could scarcely be a satisfactory explanation. So it is said that for that reason the child's claim fails. … … [49] In this case, neither the claimant nor her mother were in any way responsible for the failure to institute proceedings within time. The claimant was incapable of giving any explanation. The mother's explanation of the delay was satisfactory. She learnt of Ms Walsh's mistake and the need to obtain leave to commence proceedings on 1 September 2003, two days before the application was filed. Whether the expression 'in the position of' in s40(2) embraces only the claimant herself or embraces also her mother, the posited 'reasonable person' would have been justified in experiencing the same delay since neither knew anything about the limitation period or the need to make the application until 1 September 2003. Ms Walsh fully explained her further delay after 11 April 2003 in the cross-examination I have quoted (at 648 [38] - [39]). Applying either the test in Diaz v Truong as articulated by Hodgson JA or as articulated by Foster AJA the explanation was, within the meaning of s40(2) of the Act, satisfactory. …" 93 In 2005, in Figliuzzi v Yonan [2005] NSWCA 290, the Court (Santow JA, Tobias JA and McColl JA) dealt with an adult claimant who had misunderstood her rights to claim. Tobias JA and McColl JA both discussed the authorities on the MA Act, s 40(2) (the MC Act, s 66(2)) and in particular the effect of Russo v Aiello. Tobias JA applied Giles JA in Diaz at 165 [42] for guidance as to the second sentence of s 40(2). His Honour did so because in Blackburn both Mason P and Giles JA employed [42] of Diaz as the test. Tobias JA also referred to Russo v Aiello at 645 [4] and 646 [7] (Gleeson CJ), 651-652 [27] (McHugh J) and 659 [58] and 662-663 [74] (Gummow J and Hayne J). Tobias JA's reasons (with whom McColl JA substantially agreed) require an objective analysis found in the second sentence as the sole test of satisfactoriness. 94 Finally, in 2006, in Smith v Grant the Court (Handley JA, McColl JA and Basten JA) reviewed the authorities. Basten JA (with whose reasons Handley JA and McColl JA agreed) expressly reserved the question as to the extent of the attribution of personal characteristics of the claimant in the expression "a reasonable person in the position of the claimant". Basten JA expressed the view that the relevant test for s 66(2) of what was satisfactory was found concentrated in the second sentence of s 66(2). He therefore disagreed with Giles JA and Foster AJA in Diaz and Hodgson JA in Blackburn that satisfactoriness of the explanation was not confined to compliance with the second sentence in the MA Act, s 40(2) and the MAC Act, s 66(2). In so doing, he preferred the approach of Tobias JA and McColl JA in Figliuzzi, in particular in the light of what the High Court said in Russo.

Resolution of the authorities 95 As is perhaps evident, the above line authorities is not without difficulties in reconciliation. The most recent authorities: Figliuzzi and Smith, both relying significantly on what was said in Russo v Aiello, take the test of satisfactoriness in the second sentence of s 66(2) as the operative standard: that is, it is not merely necessary, but it is sufficient. I agree with that conclusion. The two sentences in s 66(2) are a composite whole. Though the second sentence is expressed as "not satisfactory unless" rather than "satisfactory if", reading the section as a whole the objectified standard in the second sentence is intended, in my view, to be the operative test of satisfactoriness. 96 Respectfully, I cannot agree with Hodgson JA and Foster AJA in Diaz that the focus in the second sentence is only upon the acts or omissions of the claimant. It is the whole explanation - the full explanation contemplated by the first sentence against which the question is to be asked whether the reasonable person in the position of the claimant would or would not have been justified in experiencing. 97 As I have already said in discussing the text of these provisions, the "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are. 98 The parent or legally appointed guardian will have responsibilities and rights in the discharge of the affairs of the minor. It is unnecessary to deal with this topic at length. The sources of parental power were discussed by the High Court in Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; 175 CLR 218 at 235-254. A parent is obliged to provide for the maintenance, protection and education of the child: Marion's Case and see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 183-184. Likewise legal guardianship carries with it legal responsibility: see generally the Guardianship Act 1987 (NSW). 99 To the extent that one or more persons have legal authority and responsibility to act for or in the relevant interests of a claimant, the closeness of the identity of such person or persons with the claimant may necessarily see them as part of the reasonable person or identified with or as the claimant in the process of assessing the justifiability of experiencing the delay, under s 109.

100 Others without such authority and responsibility (such as Mr Howard's mother and sister) are not so close to the claimant as to be part of the objectified person, nevertheless they and their actions may form part of "the position" or circumstances of the claimant. 101 It can be accepted that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the "position of the claimant" and by the recognition of any responsible (in the sense I have discussed) parent or guardian that the claimant may have. To the extent that the test requires the subjection of the reasonable person in the position of the claimant to the circumstances in the full explanation and a "justification" of experiencing them, such a constraint demands a normative evaluation involving cognitive consideration. The evaluation must be made even though the claimant may be brain-damaged. That is to be accepted as the operation of the objective analysis. The brain damaged condition of the claimant is not irrelevant. He or she may still be helpless and unable to look after his or her interests. This will be important in the assessment as to whether a reasonable person in is or her position would have been justified in experiencing the delay. 102 The above approach reflects significant agreement with the views of Giles JA in Diaz and Tobias JA and McColl JA in Figliuzzi, the reasoning of Sheller JA in Blackburn and, to a degree, the reasoning of Basten JA in Smith v Grant.

The nature of the appeal 103 There was no debate about the nature of the appeal. In Smith v Grant at 738 [10]-[11] Basten JA (with whom Handley JA and McColl agreed) said: "[10] The application for leave to appeal in the present matter is brought from the exercise by the primary judge of a discretionary power to grant leave to the claimant to commence proceedings in respect of a motor accident claim more than three years after the date of the accident: s 109(1). However, no challenge is made to the exercise of that discretionary power, except on the basis that a precondition to the engagement of the power was not fulfilled. The jurisdictional precondition is contained in s 109(3)(a) and s 66(2). The challenge is thus concerned with a factual conclusion involving an evaluative or normative judgment. That the challenge in the present case is properly so described may be seen from authorities concerning the 1988 Act, including Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385 ; (2004) 61 NSWLR 632 at [2] - [4] (Mason P); Buller v Black [2003] NSWCA 45 ; (2003) 56 NSWLR 425 at [37] - [39] (Mason P) and [96] (Giles JA, Ipp JA agreeing); Figliuzzi v Yonan [2005] NSWCA 290 at [68] (Tobias JA) and [129] (McColl JA) and, most recently, Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51 at [34] (Tobias JA). See also the discussion in a different context in R v Zhang [2005] NSWCCA 437 at [45] and in Perpetual Trustee Company Ltd v Khoshaba [2006] NSWCA 41 at [31] - [40] (Spigelman CJ), [99]-[100] (Handley JA) and [107]-[111] (Basten JA). [11] The application should therefore be approached on a basis favourable to the insurer, namely that the constraints on challenges to the exercise of a discretionary power, set out in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 , need not be applied."

Whether the explanation was "full" 104 Whilst the affidavits were, to a degree, exiguous, I am of the view that they were complete in the relevant sense as saying what happened and why. The provision does not call for perfection, or, as Foster AJA said in Diaz at 183 [122], for prolix or burdensome recounting of every moment that has elapsed. The section does require the explanation for the delay from the date of the accident. 105 The affidavits were sufficient to explain the impecunious circumstances of Mr Howard's relevant family members. The halting progress of the expert evidence was explained by the solicitor. That he was willing to fund the preparation of the case of a point, but no further, and then recommence responsibility for funding was explained. Why he was not prepared to recommence responsibility for funding earlier is not relevant. The family was impecunious, but he was prepared to advance the position of Mr Howard. 106 I disagree with the primary judge's conclusions that strictly only the conduct of Mr Howard needed to be explained. The authorities speak with one voice that the acts and omissions of all relevant persons should be canvassed in the explanation to allow the Court to make an evaluation.

Whether the explanation was "satisfactory" 107 The reasonable person in the position of Mr Howard, was brain-damaged and unable to protect his or her own interests. He or she had no legally appointed guardian responsible for his affairs. Though Mr Howard is to be objectified, the reality of his incapacity is to be recognised as part of his position. His position also included relatives who cared for him, but who were impecunious and unable to fund the costs of preparation of a legal action. His position included a solicitor, not strictly retained on his behalf, but by his mother and sister, willing to help, to a point, in funding the preparation of the case. 108 In these circumstances, as more fully recounted by the primary judge, would a reasonable person in Mr Howard's position be justified in experiencing the delay? I consider he would. No doubt things might have been done more quickly; perhaps if Mr Day had been both more pressing with the experts and (without disrespect to him) even more generous, things may have moved more quickly. But perfection or the most rapid despatch is not the test. The test is whether a reasonable person in Mr Howard's position would have been justified in experiencing the delay. In my view the answer is yes.

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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