Watts v Roxby

The Act

1. Section 72(1) of the Act provides that a claim must be made within six months after the date of the motor accident. Section 72(2) provides that a claim is made by giving notice of the claim to the third party insurer.
2. Section 73(1) of the Act provides that a claim may be made more than six months after the motor accident if the claimant provides a full and satisfactory explanation for the delay in making the claim.
3. Section 73(5) of the Act provides that if court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay. That is the defendant's application on the present Motion.
4. Section 73(7) of the Act provides that on an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.
5. Finally, s 66(2) contains a definition of "a full and satisfactory explanation". Such an explanation must 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 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."

Walker v Howard

1. The meaning of the phrase "a full and satisfactory explanation" has been the subject of many decisions of the Court of Appeal. The earlier decisions related to the cognate section in the Motor Accidents Act 1988, which was in similar terms.
2. In Walker v Howard [2009] NSWCA 408; 78 NSWLR 161 the Court of Appeal sat five judges to consider, inter alia, the meaning of the definition of "a full and satisfactory explanation" in s 66(2) of the Act.
3. The case concerned a claimant who suffered serious brain damage in an accident and who was unable to look after his affairs. It fell to his family members to pursue his rights. The claimant failed to commence legal proceedings against the defendant within three years of the accident and thus needed leave under s 109 of the Act to commence proceedings.
4. The grant of leave involved consideration of the same definition of the phrase "a full and satisfactory explanation" although in a different statutory context.
5. I can do no better than set out the distillation of the judgment contained in the headnote of the case. In this regard the headnote attached to the Austlii version of the case is more comprehensive than the headnote in the authorised report. References below in square brackets are to paragraphs in the decision.
6. In the case of a mentally incapacitated claimant the responsibility for providing an explanation for the delay will fall to his or her tutor but the injured person remains the "claimant" in the legislation: [47], [49], [53].
7. The explanation of "the conduct" required by the first sentence of s 66(2) is an account of the acts and omissions of the claimant and all relevant persons, including those acting or purporting to act on the claimant's behalf, if their conduct is relevant to the explanation for the delay: [53], [106], [133].
8. The explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant's behalf, but this does not broaden the meaning of "claimant" in the first sentence of s 66(2) beyond its defined meaning, to include any person acting or purporting to act on his or her behalf: [55].
9. The meaning of "full" in s 66(2) is to be understood in the context of the purpose of the provision which is to enable the court to evaluate the reasons for the delay; therefore all relevant information to that end is required: [57].
10. The test contained in the second sentence of s 66(2) is an objective test of whether a reasonable person in the claimant's position would have been justified in experiencing the delay: [64], [108], [134].
11. The "position of the claimant" with a legal or physical disability includes that disability: [64], [97], [107].
12. Others without legal authority and responsibility are not part of the objectified reasonable person, nevertheless they and their actions may form part of "the position" or circumstances of the claimant to be taken into account when considering if there was justification for experiencing the delay: [100], [150].

Karambelas v Zaknic (No. 2)

1. Counsel for the defendant referred me to the decision of the Court of Appeal in Karambelas v Zaknic (No. 2) [2014] NSWCA 433. The Court of Appeal said the following in relation to whether an explanation is "full and satisfactory" within the meaning of the Act: "16. An explanation is "full and satisfactory" within s 66(2) if it satisfies two requirements. First, it must include a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until "the date of providing the explanation". In the case of a late claim under s 73(1) that is the date on which the explanation is first provided. Secondly, the explanation must be such that a reasonable person in the position of the claimant "would have been justified in experiencing the same delay". The delay is the period during which the claimant was late in making his or her claim; a period commencing six months after the date of the motor accident and continuing until the claim is first made by giving notice to the third-party insurer. This summary of the position accords with the observations of this Court in Nominal Defendant v Browne [2013] NSWCA 197; 64 MVR 214 at [15] - [16] (Basten JA, Barrett and Gleeson JJA agreeing) as to the application of the definition in s 66(2) to the circumstances of a late claim, and is not inconsistent with the decision in Mancini v Thompson [2002] NSWCA 38, which makes clear that the focus of the "full" account is on the period of delay to be explained: at [46] - [47] per Rolfe AJA, Beazley and Stein JJA agreeing. 17. The concept of a satisfactory explanation in s 66(2) requires the making of an evaluative judgment or assessment as to whether, by reference to an objective standard and given the claimant's position, the delay which occurred was reasonably justifiable. The precise question that arises under s 73(7) is whether the Court is satisfied that the claimant "has a full and satisfactory explanation". The use of the present tense makes plain that the Court is not restricted to a consideration of the explanation which was provided "in the first instance". However, the position remains that the explanation is directed to the delay which occurred to the time when the claim was made."

Steps taken by the plaintiff

1. The plaintiff is presently 65 years of age. At the time of the accident she was in full-time employment in her own business. The accident which occurred on 24 February 2013 was relatively minor. While there was a heavy impact between the front of the defendant's vehicle and the rear of the plaintiff's vehicle, the plaintiff did not perceive at the time that she had suffered any injury. On the following day she experienced discomfort around her right hip and down the front of the right leg. She thought the pain would get better but it did not. She continued working full-time.
2. After a couple of weeks of suffering pain the plaintiff made an appointment to see her general practitioner. She had to wait for an appointment. She eventually consulted the GP on 15 March 2013. The doctor prescribed pain relief and sent her for physiotherapy. The plaintiff kept working in the hope that her hip would be fixed. Eventually the GP sent the plaintiff for an MRI of the right hip which was undertaken on 8 May 2013. After the results were obtained, the GP referred the plaintiff to Dr Ireland, an orthopaedic surgeon.
3. When the plaintiff saw Dr Ireland he recommended surgery on the right hip. The plaintiff entered Campbelltown Private Hospital and had her first surgery on 8 July 2013. The plaintiff had ceased work at the end of June 2013 because she could not cope with the amount of pain she was experiencing.
4. The plaintiff was discharged home after the surgery on 8 July 2013. At home on 10 July 2013 she fell heavily and fractured her right femur. She was taken by Ambulance to Sutherland Hospital where surgery was undertaken by Dr Keeley. She was discharged on 25 July 2013.
5. While in Sutherland Hospital the plaintiff was seen by a social worker. The plaintiff was cross-examined about the notes made by that practitioner.
6. After the second operation the plaintiff had to move from her home in southern Sydney, to the Central Coast. She lived there with her elderly mother. She gained weight and became very depressed.
7. In the course of her hospitalisation at Sutherland Hospital in July 2013 the plaintiff said that she was advised by a doctor that she should report the motor vehicle accident to the police. This was the first time she had been advised to do that. To that point the plaintiff's property damage claim was being paid by the defendant's property damage insurer.
8. After the second hip operation the plaintiff had to go onto Centrelink benefits. She found her situation, in not working and in being looked after by her elderly mother, humiliating and distressing. She was very worried about what would happen to her. She had to get around using a walking frame. She was not thinking clearly.
9. The plaintiff had a third surgery performed in January 2014. She started to receive financial assistance from a local community organisation. Someone from that organisation in early 2014 suggested that she see Legal Aid. On 27 May 2014 the plaintiff sought advice from Legal Aid. She was told that she should seek advice from a specialist practitioner in the area of personal injury law.
10. The plaintiff made an appointment with her present solicitors and had her first conference on 13 June 2014. There was some delay in obtaining correspondence and documents from that solicitor, because material was being sent to the plaintiff's home post office box, while the plaintiff was living some distance away on the Central Coast with her mother.
11. Eventually the plaintiff received a Personal Injury Claim Form from her solicitors on 22 July 2014. She completed the form and returned it to her solicitors. It was lodged with the insurer on 1 August 2014.
12. In paragraph 37 of the Statutory Declaration the plaintiff said: "I did not know at any time prior to consulting my present solicitors in June 2013 that it was necessary for me to lodge a personal injury claim form with the CTP insurer of the vehicle at fault for my accident on 24 February 2013. I did not know that such a claim form had to be lodged within 6 months of the date of the accident. Had I known that I would have ensured that a claim form was lodged. I have always been good with paperwork in my business. It was only after the second operation in July 2013 that I realised how serious my injury was. By that time I was so incapacitated that I don't think I was thinking clearly about what I should do. I have never properly recovered from those operations. In the months after those operations I have severe pain every day. I was taking narcotic painkillers twice per day. I was, and continue to be very depressed. My memory and motivation have been very poor since this has all happened to me."
13. The plaintiff was cross-examined, but no questions were asked about paragraph 37 of her Statutory Declaration. The matters in that paragraph thus stand unchallenged.
14. The cross-examination of the plaintiff included questions about what the plaintiff said to the social worker at Sutherland Hospital.
15. The notes of Sutherland Hospital show that the plaintiff was in the Intensive Care Unit of Sutherland Hospital, after her surgery, until at least 8.35am on 14 July 2013, when she was released from the ICU to a general ward. She was seen on that same date by a social worker who commenced making notes at 11.05am. The social worker noted that the plaintiff was experiencing "multiple psychosocial stressors". The plaintiff told the social worker that she did not want her elderly mother to know that she was in hospital, she did not want her brothers to know, and she did not want her best friend to know. She said that she was not coping well and did not want to worry any of those people. The plaintiff did tell the social worker about the motor vehicle accident in early 2013. She indicated that she had outstanding medical bills and "feels she may need to pursue other avenues for compensation". The plaintiff reported financial worries due to loss of employment and difficulty gaining re-employment due to the injuries sustained.
16. The social worker listed a number of suggestions made to the plaintiff. Recorded as no. 6 was: "Provided information to pt [patient] re Motor Accidents Authority as per pt [patient] request."
17. The plaintiff was cross-examined about this note. The plaintiff did not agree that she had been provided with such information. In a written explanation to the insurer, the plaintiff said that she was an organised person who always kept paperwork, and that she had no paperwork regarding the Motor Accidents Authority.
18. There was no evidence of the form in which the information was given (whether written or verbal), or what information was given about the Motor Accidents Authority. There was no evidence that the plaintiff was told about the need for a claim form or the six month time limit.

Submissions for the defendant

1. Counsel for the defendant accepted that the plaintiff did not know of the six months requirement until she saw her solicitors. He submitted that there were gaps in the explanation between August 2013 and January 2014, and then between January 2014 and May 2014. It was submitted that the gaps were not explained and thus the explanation provided was not full and satisfactory. It was pointed out in submissions that the plaintiff thought from early days that the accident had caused her significant physical and financial problems.

Consideration of the explanation

1. I refer again to the decision of the Court of Appeal in Walker v Howard and make the following findings. I find that from a period shortly after the accident, until the claim form was lodged, the plaintiff was suffering from significant physical problems which had led to three surgeries on the hip. At least in relation to the second surgery, at Sutherland Hospital, there was evidence that the course of treatment was not uncomplicated, since the plaintiff spent several days in the Intensive Care Unit.
2. The plaintiff said, and I find, that after she had to give up work in June 2013 because of pain, she gained weight, became depressed, and was not coping. An indication of the depth of the plaintiff's despair, is that she wanted to hide from her family and her best friend the fact that she was in hospital, as she thought it was not fair to involve others in her worries. The hospital notes record that a month before the plaintiff was in Sutherland Hospital seeing the social worker, she had been treated by her GP for depression.
3. I accept the plaintiff's evidence, unchallenged as it was, that the plaintiff was not coping with the many stressors in her life. Nor was there any challenge to the fact that she was suffering greatly physically, as well as financially and psychologically during the period in which there was a delay in providing the claim form to the insurer.
4. I find that the conversation with the doctor at Sutherland Hospital about reporting the matter to the police did not involve, in any way, the plaintiff becoming alerted to the need to serve a claim form, let alone any time limit involved in such service. The plaintiff did attempt several times, without success, to belatedly report the accident to the police. From this I infer that if she had been told about the need for a claim form, she would have followed that up.
5. I also find that while the note of the social worker may well be accurate, there is no evidence that the plaintiff was informed by such conversation that she should seek legal advice, or that she should lodge a claim form, or that there was a six month time limit for doing so. When the plaintiff had her conversation with the social worker, I find that she was entirely focussed upon her physical, psychological and financial problems, having only been released from the Intensive Care Unit that same morning.
6. I find that in the second half of 2013, the plaintiff was continuing to suffer greatly, in both body and mind, leading to her third surgery in January 2014. The plaintiff was in effect overwhelmed during this period by a combination of her pain, and her financial difficulties (which caused her to seek charity from a local organisation) and her emotional problems.
7. When someone from the community organisation did suggest that she go to Legal Aid, the plaintiff went there, and took up the advice offered to seek a meeting with a specialist personal injury lawyer. Once the plaintiff received advice from that lawyer that there was a need to file a claim form and that the time limit was six months (matters accepted by the defendant on this motion), the plaintiff moved promptly to fill out the claim form and have her solicitors lodge it.
8. Between serving the claim form in 2014 and providing the explanation in 2015, the plaintiff gave instructions to her solicitors to provide extra information to the insurer about the late claim, and managed after some attempts to formally report the accident to the police. In January 2015 the plaintiff had her fourth operation, a total hip replacement performed by Dr Keeley. Unfortunately it was not a great success. The plaintiff still gets around on a walking frame and takes strong opiate medication for her pain.
9. The initial Statutory Declaration, supplemented by further material provided by the plaintiff and her solicitors to the insurer, lead me to find that the plaintiff has given a full account of her conduct, including her actions, knowledge and belief, from the date of the accident until the date of providing the explanation.
10. I saw the plaintiff in the witness box and I formed a favourable impression of her. She listened carefully to questions and answered them promptly and frankly. I accept the plaintiff as a witness of truth. I have already noted that many important parts in the plaintiff's explanation, provided in her Statutory Declaration, were not the subject of challenge during cross-examination. I find that the plaintiff acted reasonably and in her own interests at all times, given the circumstances she was facing. I find that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay of 49 weeks, as experienced by the plaintiff in the present case.
11. I therefore find that the plaintiff has provided a full and satisfactory explanation for the delay in making her motor accident claim. The motion will be dismissed.
12. I will order that the defendant pay the plaintiff's costs of the motion. Counsel for the plaintiff sought such costs on an indemnity basis, but I see no reason to make such an order. The defendant has acted perfectly reasonably in litigating the issue, and as cross-examination demonstrated, had material to put to the plaintiff which could have led to a different outcome, had I accepted the defendant's submissions.

Orders

1. My orders are: 1. Defendant's motion filed on 1 March 2019 is dismissed. 2. Order the defendant to pay the plaintiff's costs of the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 May 2019