Wellington v Lawler

Supreme Court of NSW|2018-03-09|Before: Rothman J

Solicitors: Herbert Weller Solicitor (Plaintiff) J M Crestani & Associates (Defendant) File Number(s): 2017/30990

Judgment

HIS HONOUR: By Amended Summons filed 7 February 2017, the plaintiff, Nathan Wellington, seeks an extension of the limitation period, pursuant to the terms of s 52 of the Motor Accidents Act 1998 (NSW) (hereinafter "the Act"), so that the plaintiff may commence proceedings for personal injury out of time otherwise prescribed. The extension of time came before the Court at the same time as a Motion by the defendant, seemingly unnecessary, that the Amended Summons be dismissed.

Principles Applicable to the Extension of Time

Leave to commence proceedings out of time is agitated within the framework of the Act, and in particular Part 5 thereof, to which it is necessary to refer, in order to understand the principles applicable to the grant of leave and the purpose of the Act. The objects of Part 5 of the Act are prescribed in s 40A of the Act, which is in the following terms: "40A Objects - Part 5 The objects of this Part are: (a) to ensure that claims are quickly brought to the attention of insurers: (i) to enable early investigation and assessment of claims, and (ii) to enable the early identification of the nature and severity of the injuries sustained in the motor accident and of the likely treatment and rehabilitation needs of the injured person, and (iii) so that insurers can readily predict claim frequency and hence make appropriate provision for the calculation of premiums, and (iv) to enable accident victims to receive prompt treatment and rehabilitation and prompt payment of lost earnings where liability is clear, and (b) to promote negotiation between the parties and, by means of alternate dispute resolution, to ensure that the resolution of disputed claims by the courts is kept to a minimum, and (c) to underscore the need to deter and prevent the making of fraudulent and exaggerated claims."
There are two fundamental aspects of the foregoing objects. The first is that, as has been expressed, the Act is crafted with an object that claims under the Act are brought quickly to the attention of insurers so as to enable early investigation and assessment; the early identification of the nature and severity of injuries and the likely treatment; to facilitate the appropriate calculation of premiums; to facilitate the prompt treatment of accident victims; to promote negotiation between the parties; and to deter and prevent the making of fraudulent and exaggerated claims.
Thus, the speedy resolution of claims and the expeditious making of claims is more than an object that facilitates the "quick … resolution of the real issues in the proceedings" (see s 56 of the Civil Procedure Act 2005 (NSW)), but is also inherent in the benefits associated with the Act itself.
The relevant time period, as established by s 43 of the Act, provides that a claim must be made within six months after the relevant date, which is, in this case, the date of the motor accident. Section 43A(2) of the Act allows a claimant to make claims, after the time limit prescribed in s 43 of the Act, only if the claimant provides a full and satisfactory explanation for the delay in making the claim. The Act prescribes objects expressly for the making of late claims, which are prescribed by s 43A(1) of the Act.
Further, the Act specifies limitations on the commencement of court proceedings, expressed as a period of three years from the date of the accident, which limitation, on its face, applies to the current circumstances. The Court must consider those provisions in these proceedings.
The prohibition in s 52(4) of the Act, from commencing proceedings, is subject to an exception where the relevant court grants leave. It is that exception on which the plaintiff relies, in seeking leave of the Court to file a Statement of Claim in respect of the motor vehicle accident more than three years after it occurred.
The provisions of s 52(4B) of the Act enjoin the Court from granting leave under s 52(4) of the Act unless, relevantly, the plaintiff provides a "full and satisfactory explanation" to the Court for the delay and, further, the total damages of all kinds is not less than 25% of the maximum amount that may be awarded for non-economic loss under s 79 or s 79A of the Act.
Again, the legislature has prescribed objects applicable to the provisions of s 52 of the Act, which, once more, stresses the encouragement of the early resolution of claims, without the need for court proceedings or the commencement of court proceedings.
Over and above the foregoing, the Court is enjoined, by the provisions of s 56 of the Civil Procedure Act and following, to seek to facilitate the just, quick and cheap resolution of the real issues between the parties. On one view at least, the provisions of the Act, requiring strict time limits that, expressly, seek to facilitate the non-curial resolution of claims, are an express particular of the method by which the facilitation of the resolution of the real issues between the parties will be achieved quickly and cheaply.
For the purposes of these proceedings, and only for the purpose of the interlocutory aspect of the proceedings now before the Court, the defendant concedes that the plaintiff's potential damages satisfy the damages threshold necessary for a claim to be made and curial proceedings commenced: see s 52(4B)(b) of the Act. Thus, the only remaining statutory requirement, to be satisfied by the plaintiff, is whether there has been a full and satisfactory explanation for the delay in commencing court proceedings.
Given the concession as to damages, if, contrary to the submissions of the defendant, the Court was satisfied that the plaintiff has given a full and satisfactory explanation of the delay, then the Court would be permitted to exercise the discretion reposed in it to extend the time limit prescribed by the Act.

Full and Satisfactory Explanation

As earlier stated, for the purpose only of the extension of time, the defendant concedes that the condition prescribed by s 52(4B)(b) of the Act has been satisfied. In other words, for the purposes of this application, the Court is able to act on the basis that if the matter proceeds, and if the plaintiff is successful and damages are awarded, the damages will be not less than 25% of the maximum amount awarded for non-economic loss under s 79 or s 79A of the Act.
However, the defendant does submit that the plaintiff has not provided "a full and satisfactory explanation to the Court" of the delay. In the absence of a full and satisfactory explanation, the Court is precluded from granting leave to file the Statement of Claim and/or commence proceedings beyond the time limit prescribed by s 52(4) of the Act.
The term "full and satisfactory explanation" has been the subject of much authority. The leading explanation was that provided by the High Court in Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 (hereinafter "Russo"). Before dealing at length with the principles arising from the judgment of the High Court in Russo, it is necessary to explain that some of the comments relating to the onus of proof are not relevant to the current proceedings.
While the determination of whether there had been a "full and satisfactory" explanation to which the High Court referred in Russo was in the context of the Act, the proceedings were agitated on the basis of a motion on notice by the defendant/insurer to dismiss the proceedings, as a result of the claimant failing to comply with the time limits in the Act. As a consequence, the applicant on the motion (being the defendant in the proceedings) bore the onus of proof and some comments, both in the High Court and in the Court of Appeal, related to that peculiarity.
In the present proceedings, the plaintiff, as he should, has sought leave to commence proceedings pursuant to the terms of s 52 of the Act. Nevertheless, the question of which of the plaintiff or defendant bears the onus of proof is not a matter that makes any or any substantial difference to the outcome of these proceedings.
In Russo, the High Court explained that the concept of a full and satisfactory explanation requires two substantially different criteria to be met. The first of them, "a full explanation" is a full account of the conduct from the date of the accident until the date that the explanation was provided. The definition is set out in s 40(2) of the Act which defines, for the purposes of Part 5 of the Act, the term "full and satisfactory explanation".
The subsection also defines a "satisfactory explanation" in the negative, namely, that it is not a satisfactory explanation "unless a reasonable person in the position of the [plaintiff] would have failed to have complied with the duty or would have been justified in experiencing the same delay". As already stated, that definition of full and satisfactory explanation is relevant to the time limit for the making of a claim under s 43A(2) of the Act and for the commencement of proceedings under s 52(4B) of the Act.
In Russo, Gleeson CJ referred to the subsections and the definitions in the following comments: "[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. [5] Part 5 is replete with legislative declarations of its objects. This is not an exercise in apologetics. Rather, it gives practical content to terms such as 'reasonable', 'justification' and 'satisfactory'. What would constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes explained in the Act. That matter is taken further by a specific provision (in s 43A(3)) that evidence as to delay in the onset of symptoms of physical injury may form part of an explanation. [6] The concept of 'a reasonable person in the position of the claimant' could give rise to difficulties that do not exist in the present case. The first appellant consulted a solicitor some 10 days after the motor vehicle accident in which he was injured. He was informed of the time limits imposed by the Act, and was handed a claim form. There is no basis in the evidence for concluding that he did not receive prompt and competent legal advice. We are not concerned with the possible significance of incompetent or inadequate legal advice, or lack of awareness of the time limits on making a claim."
As the judgment of Gleeson CJ makes clear, it is the explanation proffered by the plaintiff that must form the basis for the fact-finding, as to whether the explanation is "full and satisfactory" as that term is defined. All of the other judges of the Court, except Kirby J, were of the same or similar view.
The High Court judgment makes clear that the prejudice to the defendant, or the lack of it, is not the basis upon which these criteria for leave to file out of time are assessed. Rather, the Act requires a justification for the delay, not a demonstration that there is no prejudice: Russo per Gleeson CJ at [7] and McHugh J at [25].
In the joint judgment of Gummow and Hayne JJ, a more complete analysis of the factual circumstances associated with the claim by the claimant against the insurance company was outlined and their Honours came to the view that it was at least open to reach the conclusion that the explanation for the period relevantly in question was not "full". This is because there was no attempt to identify when it was that the plaintiff realised that his disabilities had not improved, which led him to the decision to seek further legal advice and attempt to make the claim.
Further, their Honours took the view that it would be open to conclude that the explanation as to the delay for the period relevantly in dispute was not "satisfactory". In the explanation of the latter, their Honours referred to the objects of the Act and the objects of Part 5 of the Act and of the particular provisions dealing with the making of claims within a tight timeframe.
The joint judgment emphasises that the statute provides and seeks to promote prompt settlement of claims and early resolution of disputes, so that claimants can be the subject of rehabilitation, prompt treatment and prompt recompense. The foregoing principles are now well-established and inform the Court's current evaluation as to whether the plaintiff has provided a full and satisfactory explanation.
The principles to be applied in granting leave to commence proceedings out of time under the Act (or more accurately the Motor Accidents Compensation Act 1999 (NSW) (hereinafter "MACA") was the subject of further discussion by the Court of Appeal, sitting as a five-member bench in Walker v Howard (2009) 78 NSWLR 161; [2009] NSWCA 408. The provisions of the MACA and the currently relevant provisions in the Act are provisions in pari materia.
The majority judgment in Walker v Howard was delivered by Allsop P, with whom each of the other judges (Spigelman CJ, Campbell, Macfarlan and Young JJA) agreed, and, in the case of Campbell and Young JJA, with certain additional comments. The reasons for judgment of Allsop P (and the Court) included the following principles: 1. a full and satisfactory explanation must be of the conduct of the claimant and others so far as is relevant to the explanation for the delay, including the conduct of others who have acted or purported to act on behalf of the claimant; 2. the test as to whether an explanation is satisfactory requires an evaluation of the whole explanation from which the court, performing the evaluation, asks itself whether a reasonable person "in the position of the claimant" would be justified in experiencing the delay. As a consequence of the use of the term "position of the claimant", the circumstances of the claimant inform the objective analysis of whether the explanation is satisfactory.
Of course, the factual circumstance in Walker v Howard was very different to the circumstances before the Court in these proceedings. The plaintiff (respondent on the appeal) in Walker v Howard was under a particular disability and, therefore, when assessing what a reasonable person in the position of the claimant would have done, the Court was required to make that assessment on the basis of a person who was brain-damaged and unable to protect his or her own interests: Walker v Howard at [107].
Nevertheless, the overriding general principles adumbrated by the Court of Appeal in Walker v Howard build on the statements of principle of the majority of the High Court in Russo and other principles that must be applied in evaluating and determining whether the explanation provided by the plaintiff in these proceedings is "full and satisfactory".
It should be borne in mind that if the Court were of the view that the explanation was "full and satisfactory", then the statutory precondition, which, if not satisfied, would disentitle the Court from exercising the discretion to grant leave, would have been satisfied. It seems, on the face of the legislation that, if the statutory preconditions were satisfied, then the Court would have the discretion (hereinafter the "residual discretion") as to whether leave would be granted.
That residual discretion may well depend, for example, upon the prejudice that may have been suffered or may be suffered by the defendant in the putative proceedings. The Court will deal with the possibility of any such residual discretion, and whether it should be exercised, if and only if appropriate.

The Plaintiff's Injuries

The period between the date of the motor vehicle accident, 21 October 1998, and the application for leave to commence the proceedings is the subject of significant documentation. There is also documentation relating to some relevant aspects of the plaintiff's medical records prior to the date of the accident.
It is, in the context of these reasons for judgment, difficult to do justice to the many volumes of material covering the period in question. Nevertheless, the period is a long one and some of the plaintiff's background prior to the motor vehicle accident needs to be understood.
The explanation for the time period between 21 October 1998 and the filing of the Summons seeking leave to commence proceedings is the subject of Affidavit of the plaintiff and of an Affidavit by his solicitor, Herbert Weller, sworn 11 August 2017. The Affidavits exhibit volumes of documents.
The plaintiff was born in Sydney in 1966 and has lived in the Hawkesbury area the whole of his life. Prior to the motor vehicle accident (hereinafter "the accident") he was married and had been married for a period of seven months. He has two children, who, as at August 2017, were 16 and 13 respectively.
As a result of the accident, the plaintiff suffered sequelae, which affected his behaviour and, on his view, caused him and his wife to separate a number of times, but finally in June 2013. They were divorced in or about mid-2017.
After attending local schools, the plaintiff obtained an apprenticeship as an electrician and worked with the Department of Main Roads (as it then was). The apprenticeship was completed in 1986. Following the completion of the apprenticeship, the plaintiff undertook post-trade electronic qualifications and continued to work for the Department of Main Roads.
In or about 1988, the plaintiff commenced work with the Department of Housing and Construction at the RAAF base in Richmond.
He and his then partner purchased a house, which was transferred wholly to his partner in or about 1996. The plaintiff completed other training that was post-trade training, including high-voltage switching and other technically specialised areas.
In about 1995, another house was purchased in South Windsor which, in about 1999, was transferred (at least as to the half share of the plaintiff) to his wife.
The aforementioned employment continued until in or about 1997 when the employer was demerged or privatised from the public sector. At that time, the plaintiff received a redundancy package. He and his then fiancé travelled overseas for about eight months.
Upon his return from overseas, the plaintiff commenced employment in Seven Hills with an industrial machinery company and he and his fiancé were married shortly thereafter. The plaintiff, together with his wife, purchased a home in Freemans Reach in or about August 1999.
In or about July 1998, the plaintiff commenced employment with KAL Mechanical Air-conditioning ("KAL") in Leichardt. He was employed there as an electrical technician. The work with KAL included working on commercial premises in homes and involved driving to and from work sites.
The accident occurred at or about 6:20 AM on 21 October 1998. The plaintiff was driving to a worksite to perform work. The worksite was Blacktown Travelodge and the plaintiff was driving a work van, then provided by KAL.
It is unnecessary to detail all of the aspects of the accident, but it was a relatively simple accident in which the plaintiff drove his car into a roundabout and a vehicle travelling relatively quickly collided into the front passenger side of the plaintiff's vehicle after not, it is alleged, giving way, as was required, to the vehicle being driven by the plaintiff.
It is alleged that the driver of the other vehicle apologised "for causing the accident".
Immediately after the accident, the plaintiff felt pain in his neck, upper and lower back and generally. There was, it is said, more pain in the right side of the plaintiff's neck and in the upper back, than in the lower back. Shortly after the accident, within an hour or so, the plaintiff felt stiff, tight and sore in the neck and upper back and started to experience a headache.
The plaintiff arrived at the Travelodge in Blacktown at or about 7:15 AM and continued with work that had been commenced the previous day. As the work continued, the plaintiff suffered increased stiffness, pain and soreness in the neck and upper back. The headache, when it materialised, started from the back of the plaintiff's head, at the upper level of his neck and progressed to the top of his skull and into his forehead. He attended the first aid facility on site and took some mild painkillers.
After a couple of hours, the plaintiff felt sharp, severe pain in his neck and upper back. The headache also became severe. At or about 10 AM on 21 October 1998, the plaintiff ceased work, called his employer and told the employer that he could not continue working that day and was going to visit a doctor. The employer, apparently, suggested that the plaintiff should make a Police report.
The plaintiff drove home and attended on his general practitioner's practice. His usual general practitioner was unavailable and he was attended by a locum, Dr Mah. Reports of Dr Mah (and many other doctors) are available to the Court.
The plaintiff was advised by Dr Mah to use hot and cold compresses and, otherwise, mild paracetamol or codeine/paracetamol tablets and to monitor whether the pain, stiffness and headache settled over the next few days.
On 21 October 1998, Ms Bedford, an employee at KAL, having received the report from the plaintiff as to the injury, notified the workers compensation insurer (hereinafter the "WC Insurer"). On 22 October 1998, the plaintiff reported the accident to Police.
The plaintiff continued, as suggested by the medical practitioner, to use hot and cold compresses and continued to take Panadol and/or Panadeine. He felt mild pins and needles in the left hand. The plaintiff wanted to return to work and when, after about a 10 day absence, to some extent, the sharp pain and tightness diminished, the plaintiff returned to work.
On his return to work, the aforementioned Ms Bedford, who not only worked for KAL but was the wife of the Managing Director of KAL, had the plaintiff complete forms about the accident for the WC Insurer. The plaintiff also spoke to the Managing Director, who assured the plaintiff that he should not be concerned, as KAL had workers compensation insurance and the vehicle itself was fully insured, so that the plaintiff was fully covered.
As earlier stated, the plaintiff's general practitioner, Dr Sietsma, was absent from the practice on 21 October 1998. Later in the period between the accident and the application for leave to commence proceedings, another doctor, Dr Mackay, was also involved in the medical practice.
The plaintiff struggled to fulfil his duties after he returned to work and he continued to experience pain, particularly when lifting equipment and running cables for air-conditioning. He also experienced pain when sitting and driving long distances.
Notwithstanding the fact that the plaintiff enjoyed working for KAL, the difficulties with the performance of work and the difficulty he was experiencing required him to put aside his personal desire to continue to work for KAL and look for lighter work in the electrical field.
The plaintiff found such work at Hawkesbury District Hospital and was employed by the Health Service from about May 1999 on a full-time basis.
Because the hospital buildings and facilities had been recently constructed, the work was basic electrical maintenance and generally lighter duties. The plaintiff completed a management course and his role evolved into the Engineering Team Leader. His original electrician's position was filled by another. In the position of Engineering Team Leader, the duties of the plaintiff were even less physically arduous than the basic electrical maintenance work previously performed.
The plaintiff, nevertheless, still suffered pain and significant symptoms, to the extent that on some days he was absent on sick leave. Apparently, the employer was relatively understanding about those absences.
During the period following the accident, the WC Insurer organised for the payment of osteopath and chiropractic treatment. The plaintiff was also receiving treatment from a physiotherapist, until payment for that treatment was stopped. The plaintiff also received medical attention from Dr Al-Khawaja, a specialist consulting surgeon.
During December 2005 and January 2006, the physiotherapist was on leave and the plaintiff did not receive treatment and, seemingly as a consequence, his symptoms were aggravated. The plaintiff says he felt neck pain a little worse than when physiotherapy was occurring regularly and, similarly, experienced the stiffness from which he previously suffered. The "pins and needles" in his fingers returned.
During the period December 2005/January 2006, the pain and stiffness in the plaintiff's neck worsened, as did the headaches. The plaintiff sought to undertake some light gardening and could sleep only after medication. The plaintiff would wake from his sleep in pain. Further, the plaintiff's pain would increase dramatically if and when the plaintiff sneezed.
During and after this period, the plaintiff's absences from work increased and he was required to utilise all of the sick leave and annual leave to which he was entitled. In early 2006, Dr Mackay gave the plaintiff clearance to return to work, but only on light duties.
In March 2006, the plaintiff was referred to a specialist neurologist concerning his neck pain, stiffness and numbness and x-rays and scans were performed. A specialist surgeon (Dr Dexter) spoke with the plaintiff about surgical options involving, amongst other things, a multi-level fusion that, on the information provided by Dr Dexter to the plaintiff, involved a risk of paraplegia.
Alternatively, a microdiscectomy could be performed, which also involved risks, but not to the same extent. Further medication was prescribed.
In May 2006, the plaintiff returned to Hawkesbury Hospital on lighter duties, which did not involve the use of tools and was mainly concerned with office and desk work. Within a short period of time, the plaintiff was permitted to do on-call work at the hospital and the plaintiff believed this would continue.
The light duty work had been approved by the hospital, which was then owned by Catholic Healthcare and also by Allianz WC. Nevertheless, the increase in pain, stiffness and numbness resulted in further and increased absences from work.
In June 2007, the plaintiff was, again, made redundant. Another position was re-advertised in which the job description was varied slightly and for which the plaintiff applied. The plaintiff was unsuccessful. When the plaintiff complained about the process, he was told by the Head Manager that it had all been done "by the book" and that the plaintiff had no "come back".
By this stage, the plaintiff was suffering psychological sequelae, as a result of the injury, his redundancy and that which was occurring in his life. His mental state was having an effect on his relationship with his wife and his children. The plaintiff consulted psychologists. The plaintiff continued to see one of those psychologists until sometime in 2012.
Following his retrenchment, the plaintiff sought other employment and was successful in obtaining a job as an Advertising Salesperson, which he commenced in late 2007 or early 2008. The pain, which he was suffering, required him to stand and walk around at regular intervals and prevented him from sitting for long periods of time at a desk. The employer was, it seems, on the plaintiff's assessment, unhappy about those restrictions. In or about August 2008, the employer retrenched the plaintiff.
In 2008, for reasons associated with the financial burden, the property at South Windsor was sold. The plaintiff sought to establish his own business from home as an Advertising Sales Representative. He obtained contract work as a Sales Representative, but the payments from the principal were slow and sometimes less than was owing. In early 2010, the principal company went into liquidation. The plaintiff was desperate to continue to work and earn money so that he could pay the mortgage. There was pressure from his wife in that regard.
The plaintiff then sought to set up a publishing business, in which a magazine, on high-performance Ford and Mustang vehicles, could be compiled and published. The first edition was published towards the end of 2010.
For the purpose of the last mentioned business, venture money was borrowed from the Commonwealth Bank. All this time, the plaintiff was being treated by the psychologist until she left the practice, whereupon another psychologist treated the plaintiff.
Eventually the payments under the Mental Health Care Plan ceased and the plaintiff was unable to continue treatment from the psychologist. The plaintiff sold one of the cars that he possessed in order to finance the magazine business and approximately 13 editions of the magazine were printed.
In 2013, Dr Mackay informed the plaintiff that he could no longer treat him as he was too busy to be dealing with his insurance company. The plaintiff was then treated by Dr Khan at McGraths Hill Medical Centre. Dr Khan referred the plaintiff to a psychiatrist, Dr Sydney Smith. The WC Insurer would not agree to fund the fees to see Dr Smith.
In mid-2013, the plaintiff sold his other performance vehicle in order to deal with the financial issues then faced by the plaintiff and his family. In or about June 2013, the principal publisher "Performance Media Works" went into liquidation.
From that time, the plaintiff has continued with fortnightly treatment by an osteopath and continued strong medication for pain relief and antidepressants. He also had other examinations from surgeons, who again recommended surgery to his neck and future surgery to his lumbar spine, about which the plaintiff has serious concerns for the side-effects or complications.
Since 2013, the plaintiff has not been able to work, because of the constant pain and interference with his sleep, together with the psychological problems that he has been told he is suffering and his state of depression (if that be different).
I have not detailed all of the medical reports provided nor the doctors attended by the plaintiff. It is sufficient to reiterate that the foregoing summary is corroborated by medical evidence, detailing the advices and the determination in the plaintiff's physical condition. I have read those reports and they evidence the above summary.

The Plaintiff Cross-Examined

The plaintiff was cross-examined in relation to his injuries, although not on the basis that the injuries about which he complained had not been suffered. Rather, the plaintiff was cross-examined about his conduct and the reasons, if any, that he did not make a claim, nor commence proceedings, under the Act at an earlier time. This included cross-examination on the content and extent of the legal advice obtained by the plaintiff.
In that regard, the cross-examination concentrated on a number of periods for which the defendant ultimately claimed there was no or insufficient explanation for lack of action by the plaintiff. These issues will be discussed later in these reasons for judgment.
Nevertheless, it is necessary to deal with the plaintiff as he was observed in the witness box and in the courtroom. The plaintiff was a difficult witness and, I suspect, a difficult client. He interrupted his own counsel during the course of addresses, was argumentative and, not in a physical sense, aggressive.
Demeanour is often exaggerated as a determinant of truthfulness and reliability. However, the plaintiff's demeanour was something that does require comment and does influence the findings of the Court.
The earlier description of the plaintiff's attitude is not intended to be critical and, notwithstanding the manner in which one might ordinarily treat such behaviour, does not indicate that the plaintiff was seeking to be obstructive or mendacious.
The plaintiff openly admitted to those aspects of the time period during which he could have, but did not, take action that would have obviated the necessity for this application before the Court.
Indeed, the overwhelming impression of the plaintiff's behaviour in the witness box (and in the courtroom before and after the plaintiff gave evidence) is that the plaintiff was irritated and annoyed. He was irritated at the legal system and that which he perceived it had done to him and annoyed, both at himself and those that had previously advised him. He was annoyed at himself for unquestioningly placing trust and following what he understood to be advice. He was annoyed at others for abusing the trust that was placed in them.
Ultimately, the plaintiff displayed simplicity in approach. For all of his trade experience and post-trade qualifications, the plaintiff is unsophisticated, certainly in matters associated with the law, naive and trusting. It is necessary to bear in mind that conclusion when assessing what a reasonable person would do, being a reasonable person in the position of the plaintiff.

Legal Steps and Advice

As earlier stated, the accident occurred on 21 October 1998 and it was clear from the date of the accident that injury had been suffered. The plaintiff did not report the accident or the injury immediately, but only when it was necessary as a consequence of his inability to continue working. It is clear that the primary concern of the plaintiff, at least in the early years when the plaintiff considered he was capable of doing so, was to return to work and to work full time.
Nevertheless, because of his inability to continue working on the day of the accident, the plaintiff reported the accident and his injuries to his employer. It was his employer that notified the WC Insurer. At the request, or on the requirement, of the employer, the plaintiff reported the accident to Police. As a consequence, the requirement for the claimant to report, imposed by s 42(1) of the Act, has been satisfied.
The plaintiff's employer, KAL, reported the injury to its workers compensation insurer, who, at that stage, was MMI Limited (hereinafter "MMI"). MMI was subsequently taken over by Allianz Australia Workers Compensation (NSW) Limited (hereinafter "Allianz WC").
MMI and Allianz WC accepted the claim for workers compensation and, as has earlier been indicated, paid, at least until some significant time thereafter, medical expenses and, where appropriate, weekly or wage benefits to which the plaintiff was entitled.
No claim was made by the plaintiff under the Act. Coincidentally, Allianz Australia Insurance Limited (hereinafter "Allianz CTP"), a related company to Allianz WC, was the compulsory third-party insurer of the defendant's vehicle at the time of the accident.
The plaintiff did not directly claim against the WC Insurer. Indeed, the earlier comments as to the lack of sophistication of the plaintiff are disclosed by the proposition that the plaintiff did not seek or obtain legal advice in relation to his injuries, until the WC Insurer ceased payment for some of the treatment that had hitherto been covered. Even on the happening of that alteration in his circumstances, the plaintiff only sought legal advice after being advised of the necessity to obtain the advice by his medical practitioner. This was in 2002/2003.
The plaintiff attended on the solicitor recommended by his general practitioner.
The particular conversation with his then legal representative, which is uncontroverted, was to the effect that the plaintiff advised his solicitor that the WC Insurer had denied his claim for payment for treatment, which treatment was needed in order that he, the plaintiff, could continue to work. The solicitor remarked that the claim was being run as a "journey claim" in workers compensation. The plaintiff responded that he thought it was a road vehicle accident claim, to which the solicitor responded that because it was a journey to work, it was being processed under the workers compensation provisions.
Relevantly, the solicitor then advised the plaintiff that his rights are virtually the same and his injuries are covered under workers compensation, as a consequence of which there was no need for the plaintiff to worry.
The solicitor contacted the WC Insurer and it recommenced coverage of the costs of treatment. The same solicitor acted for the plaintiff until 2013.
During all of that time, the plaintiff maintains that he received no advice that there was a possibility of a claim under the motor accidents legislation or a need to make a claim to cover the possibility of a claim for common law damages or non-economic loss beyond that available under the Workers Compensation Act 1987 (NSW) ("WC Act"). Rather, the plaintiff understood, as a result of the earlier conversation to which reference has been made, that all of his treatment and claims were being managed under the workers compensation legislation and that no additional or extra benefit would accrue under the Act.
In or about July 2011, the then solicitor for the plaintiff applied for a commutation of the plaintiff's payments under workers compensation.
It is also obvious, from an analysis of the issues affecting the plaintiff, that the plaintiff was, with exceptions relating to absences on sick leave, able to work and being paid for work until approximately 2006. On 20 December 2005, a workers compensation commutation application resulted in a lump-sum agreement pursuant to the terms of the WC Act.
Before proceeding further in relation to the making of a claim by the plaintiff against Allianz CTP, the evidence before the Court discloses that on 17 December 2005, Allianz CTP received various documents relating to the accident. Those documents were stamped as received by Allianz CTP. The documents included the 1998 WorkCover claim and reported injury; the plaintiff's statement dated 22 March 2004; various medical certificates; and various other medical reports. I draw the inference that these documents were provided by Allianz WC in letters from its lawyers, to which I will refer.
On 17 June 2008, Allianz WC and Allianz CTP entered into a Deed of Release, purportedly pursuant to the provisions of s 151Z of the WC Act. That provision, which is notoriously difficult to apply in terms of calculations, prescribes the relative contributions of the WC Insurer and a tortfeasor that is or may be otherwise liable in relation to damages suffered by a worker and compensable under the WC Act or at common law.
The terms of s 151Z of the WC Act also prescribe the manner of the contribution and calculation of the contribution for damages under the Motor Accident Injuries Act 2017 (NSW) and the WC Act and, necessarily, involve the resolution of contribution issues associated with a claim, under common law or statutory regime, for damages under both the workers compensation legislation and the motor accidents compensation legislation.
Apart from the work history, summarised above, the plaintiff, as earlier stated, at the request of his general practitioner, obtained legal advice. As earlier stated, the plaintiff attended on Mr Rod Paull of Shaddick Baker and Paull Solicitors. That attendance and the instructions provided was given on 11 September 2003.
That contact with Mr Paull was the first time that the plaintiff sought or obtained legal advice. The time limit, with which the Court is currently concerned, under the Act, expired on 21 October 2001, almost two years before the plaintiff received any legal assistance.
Mr Paull was, at the time of the consultation, an accredited personal injury specialist. There is some minor controversy as to the terms of the consultation.
The Court accepts that Mr Paull advised the plaintiff that the claim, for which he had been receiving benefits, had been dealt with "as a journey claim at workers comp". I also accept that Mr Paull advised the plaintiff, on the plaintiff's enquiry as to the fact that it was a motor accident, that the rights "under workers comp … and your rights [to compensation under the Act] … are virtually the same and your injuries are covered under workers comp".
Nevertheless, at that time, Mr Paull advised the plaintiff that there were CTP proceedings that could have been taken; that the time for such had expired; and that it offered no greater benefit than was available under the workers compensation scheme. He also advised that the plaintiff would be liable for costs, for no additional benefit.
As a consequence of that advice and the assurance by Mr Paull that the plaintiff had no need to worry and that he (Mr Paull) would sort it out, coupled with the reinstatement of payments for the treatments undertaken by the plaintiff, it had the effect that the plaintiff understood that no additional benefits were available under the Act.
The plaintiff asserts, and I accept, that during the time that Mr Paull acted for him, which was from 2003 until 2013, he received no advice that there was a possible claim under the Act, for which benefits, over and above those that were being received, could be obtained.
In 2013, Mr Paull left the firm of solicitors in which he had previously worked. Thereafter, Mr Ian Roche, solicitor, had the carriage of the matter on behalf of the plaintiff.
On 1 July 2013, Mr Roche wrote to the plaintiff and the registrar of the Workers Compensation Commission to the effect that he no longer acted for the plaintiff. On 9 July 2013, the plaintiff collected documents and files from the solicitor's firm.
Notwithstanding the short time in which Mr Roche acted for the plaintiff, the plaintiff asserts, and I accept, that Mr Roche advised the plaintiff that the plaintiff had a claim under the motor accidents compensation legislation. The full extent of that advice is not before the Court, but such terms, as are available, are discussed later in these reasons.
After Mr Roche ceased to act for the plaintiff, the plaintiff was advised by Mr Rod Storie, solicitor, for a very short time. Mr Storie ceased to act for the plaintiff in October 2013.
When the plaintiff saw Mr Storie he was, once more, advised that he may have rights under the Act and that Mr Storie would make enquiries of counsel. Mr Storie continued with the workers compensation matter.
Mr Storie acted for the plaintiff for approximately six months and ultimately gave, as the reason for ceasing to act for him, that it was too difficult "because of the timeline and the previous lawyers".
Next, in or about November 2013, the plaintiff attended at Shine Lawyers, who sought to obtain the files and other material relating to the claim in workers compensation. The file was not, within a short time, able to be obtained and, in December 2013, Shine lawyers informed the plaintiff that they could no longer continue to act.
That which formed part of the file at Shine Lawyers was collected by the plaintiff and extracts of that file are before the Court. The files were collected from Shine Lawyers in or about January 2014.
On 17 November 2014, Mr Wellington, the plaintiff, hand-delivered to Rod Storie a direction to hand over his files, notes and reports in relation to the plaintiff's workers compensation claims to Buttar Caldwell & Co, who, according to documents in evidence, were at that time instructed by Mr Wellington in relation to his workers compensation claim.
On 26 November 2014, Mr Storie returned the only remaining material to Buttar Caldwell, the other material having been collected by the plaintiff, as earlier stated.
The content of any advice that may have been received from Buttar Caldwell in 2014 or 2015 has not been disclosed. It is relevant to note that Buttar Caldwell was instructed in the workers compensation proceedings only, but, as a consequence, may have given some advice as to the existence of a claim under the Act.
In or about February 2015, the plaintiff attended on Mr Adrian Barakat, solicitor, of AJB Stevens, and on 13 February 2015, the plaintiff confirmed that he had collected all of the files from Buttar Caldwell and provided them to that firm.
In or about February 2015, the plaintiff conferred with Turner Freeman Lawyers and the matter was handled by Mr Mrsic, solicitor. There is a full file note of a telephone conversation between Mr Mrsic and representatives of Allianz WC, seemingly in relation to the workers compensation commutation.
Mr Mrsic telephoned the plaintiff and informed him of the terms of the conversation with the representative of Allianz. The further file note recorded that the plaintiff was not happy to hear that the insurer was not interested in a commutation or that it would be valued at around $40,000, hypothetically.
Mr Mrsic advised the plaintiff to return to his "lawyers in the city", which was a reference to Buttar Caldwell, and advised the plaintiff that there was nothing further that could be done by Turner Freeman.
On 9 February 2015, a letter of advice, couched as it was in extremely qualified terms, was provided to the plaintiff by Turner Freeman, which restated the terms of the conversation with Allianz WC (or a summary thereof) and discussed whether a commutation would be available, which was unlikely, and, if it were available, the amount that such a commutation may be worth. The figure provided was described as "rubbery". It noted that the plaintiff was currently advised by solicitors, who have consulted counsel, and that they would be in a far better position than Turner Freeman to advise on those issues.
A file note from Mr Mrsic, dated 13 February 2015, notes that Mr Wellington, the plaintiff, attended and discussed the matter with Richard Kyle and Mr Mrsic at the Penrith office of Turner Freeman. It is unnecessary to summarise the advice, which deals with the possibility of a commutation and the maximum that could be realised. In the course of the file note, Mr Mrsic discussed the potential for a CTP claim, namely, a claim under the Act. It was explained to the plaintiff that any claim under the Act was out of time and that a claim against the solicitor that acted for the plaintiff in the period up to and including 2011 may be out of time and the time period for the latter is incapable of being extended. The plaintiff, apparently, threatened to report the solicitors to the Police.
As earlier stated, the full extent of the advice from Buttar Caldwell is not before the Court. Nor is the advice, if any, from Mr Barakat. The full extent of the advice from Turner Freeman is before the Court. Ultimately, Turner Freeman declined to act for the plaintiff.
The Court has earlier recited the fact that Allianz CTP received a number of documents in or about 2005. The documents were received attached to two letters from Goldberg's Lawyers, who were acting on behalf of Allianz WC. By letter dated 12 May 2005, Goldberg's enclosed the employee's compensation claim form; the employer's report of injury; the claim form for injury on the journey; the Police report; and a number of medical reports. It also enclosed a notice under s 151Z of the WC Act and stated that Allianz WC was seeking recovery from Allianz CTP, being a contribution to the payments it had made.
As a consequence, it seems, of the letter from Goldberg's, a file was created being a "CTP Claims File Initial Action Sheet" in the Allianz CTP files. Seemingly as a consequence of that claim, on 21 December 2005 and 11 January 2006, Allianz CTP wrote, respectively, to the defendant's employer, which was the registered owner of the other vehicle, and the defendant, advising them that they had received "a claim for personal injury against you for this accident".
There then follows correspondence between Allianz CTP and Allianz WC. The Court further notes that some of the correspondence on the letterhead of Allianz is letterhead that is relevant to both Allianz WC and Allianz CTP. Not all of the Allianz correspondence is in that category.
As earlier stated substantial amounts of material have been produced in relation to solicitors' advices. A body of material was produced by the defendants on subpoena and/or attached to the Affidavit of Mr Crestani. It is sufficient to state that any and all documents from any of the lawyers, be they Rod Storie, Shine Lawyers, Buttar Caldwell, AJB Stevens Lawyers (the firm for which Mr Barakat worked), Turner Freeman and Santone Lawyers have been produced. In the case of Santone, this includes a letter to the Office of the Legal Services Commissioner of 22 June 2015, which summarises the solicitor's dealings with the plaintiff.
The documents make clear that, notwithstanding the indication from Mr Barakat of AJB Stevens that they were not willing to act, the plaintiff contacted them again in January 2016 and twice in July 2016. That correspondence related to a commutation that may have been on offer. This further correspondence excited correspondence from Mr Barakat again declining to act for the plaintiff.
It is also clear that Mr Barakat advised the plaintiff on 9 February 2015 that a claim under the Act is "too far out of time" and "the chances of you obtaining leave to bring your claim out of time are slim".
As earlier stated, the plaintiff had lodged a claim under the Act on or about 22 September 2015, which was rejected by Allianz CTP, by letter dated 15 October 2015. After the rejection of the claim, the plaintiff spoke with a number of representatives of Allianz CTP, which conversations were recorded and are transcribed and are before the Court. The first of those conversations was with Mr Tony Khoury, State Manager Allianz CTP.
Following the conversation with Mr Khoury, on 17 November 2015, the plaintiff provided a statutory declaration to Allianz CTP, seeking to explain the delay in giving notice of the claim under the Act. In early December 2015, Allianz CTP rejected the explanation as neither full nor satisfactory.
On 29 January 2016, despite further entreaties from the plaintiff, Mr Barakat of AJB Stevens again confirmed that he would not act for the plaintiff.
In early 2016, there were further medical issues and, on 27 July 2016, the plaintiff first instructed Mr Weller. On 22 August 2016, the plaintiff obtained a commutation of his rights under workers compensation legislation for approximately $750,000, clear of past payments.
Presumably, with the advice of Mr Weller, and through Mr Weller, on 5 October 2016, the plaintiff gave a more detailed explanation to Allianz CTP for the delay in giving notice of his claim under the Act. This further explanation was again rejected by Allianz CTP as neither full nor satisfactory.
On 31 January 2017, the plaintiff, Mr Weller acting for him, filed the Summons with which the Court is now dealing.
The foregoing sets out the employment history of the plaintiff and the legal advice history of the plaintiff from 1998 until the filing of the summons. The foregoing does not purport to recite or summarise each and all of the medical attendances that the plaintiff underwent. It is sufficient to note that those attendances cover the whole of the period from 21 October 1998 until the filing of the Summons and beyond. It is also important to reiterate, as earlier noted, that the physical condition of the plaintiff deteriorated significantly from about 2006.

A Full Explanation

The defendant submits that the plaintiff's explanation for the delay is not "full". It is important, in considering this aspect of the statutory precondition to an extension of time, that the Court not elide the notion of that which is "full" and that which is "satisfactory".
If it be the case that nothing relevantly occurred during a period and there is no explanation for inaction during that period, such inaction may render the explanation of the plaintiff "not satisfactory", but it does not, of itself, render the explanation "not full". For an explanation to be "full", it must explain to the Court all that relevantly happened during the period between the date of the motor vehicle accident (relevantly in this Act) and the date on which the Summons was filed. In other words, the Court must have a full account of the conduct of the plaintiff, including his knowledge and beliefs.
The plaintiff in these proceedings immediately reported the accident to his employer and to the Police, at the request of his employer. The attempt by the plaintiff to attend work on the day of the accident, despite his injuries and to continue to attempt to attend and to perform work disclosed a genuine attempt not to exaggerate his injuries and an attitude inconsistent with malingering or the embellishment of his injuries.
There is no explanation of anything done by the claimant in seeking legal advice between the date of the accident on 21 October 1998 until he consulted Mr Paull at Shaddicks in April 2003. This is because no legal advice was sought during that period.
It is a period of four years, during which the time limits under the Act for making a common law claim for damages expired. Nevertheless, the explanation is full.
The plaintiff has made clear that, to the best of his ability, he was working. When he was absent from work, he was paid and he did not seek or obtain legal advice during that period. The absence of any further explanation is the result of the fact that nothing further occurred. The explanation is full. Whether it is satisfactory is a matter to be dealt with later in these reasons.
As has been made clear earlier in these reasons, the plaintiff sought legal advice in 2003 after being advised so to do by his medical practitioner. It seems that the plaintiff would not otherwise have considered such an option. So much is an inference that the Court draws from the conduct of the plaintiff and the copious material that is before the Court.
Mr Paull advised the plaintiff from 2003 until 2013. As earlier stated, after Mr Paull ceased to act, Mr Roche acted. Shaddicks continued to be the firm acting on behalf of the plaintiff.
There is copious material as to the work performed by Mr Paull (and to some extent Mr Roche) during the period between 2003 and 2013. That work related to the workers compensation claim by the plaintiff. It is also explained that Mr Paull gave advice, set out earlier in these reasons, which the Court accepts as accurately summarising the advice given, that no additional benefits could be obtained from a claim under the Act.
When the plaintiff's injuries deteriorated significantly, Mr Paull (and later Mr Roche) were made aware of that deterioration. No correction to the advice was given and no further advice was sought by the plaintiff as to his rights under the Act. This is a full, even if unsatisfactory, explanation of that which occurred during the period 2003 to 2013.
The only advice received was that advice initially given by Mr Paull and then the later advice, already recited, given by Mr Roche, each of which is explained. Further, it is uncontroverted that this was the only advice received as to the availability, or otherwise, of a claim under the Act. Further again, this is a full explanation of the relevant facts during the period. It may not be a satisfactory explanation, but that is a matter with which the Court will deal later in these reasons.
There is an explanation given by the plaintiff of advice received by Rod Storie; Buttar Caldwell; Adrian Barakat of AJB Stevens; Turner Freeman; the period during which the plaintiff was self-represented; and his advice from Herbert Weller, his current solicitors. The complaint of the defendant as to the explanation not being "full", elides that term with the question of whether the explanation is "satisfactory".
Each of Mr Storie; Buttar Caldwell; AJB Stevens; and Turner Freeman continued to advise on the workers compensation claims. To the extent that advice was sought and/or received on any claim under the Act, it was advice to the effect that the time for any such claim had well and truly expired and that it was unlikely or highly improbable that leave to issue proceedings would be granted.
The explanation is complete. Everything that was said, relevant to the proceedings and the delay, has been said. Indeed, in most instances, the terms of the advice are recited in the documents before the Court.
I conclude that the explanation available to the Court, from the plaintiff and otherwise, is full and complete. Everything relevant to the period and the delay in seeking leave has been the subject of explanation. This includes a full account of the plaintiff's conduct or actions; his knowledge; his beliefs; the medical attention sought and obtained; and his legal advice.

A Satisfactory Explanation

As earlier stated, in the discussion on the principles to be applied in determining an application for leave under the Act, the question whether any explanation for the delay is satisfactory is a question determined by asking the question whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay. While the defendant has submitted, correctly, that the delay in seeking leave in this matter is quite extraordinary, it is necessary to look at each of the periods during which delay occurred. They fall into separate categories.
The Court deals first with the period between the date of the accident, 21 October 1998, and the first attendance at lawyers in April 2003. As earlier stated the plaintiff was continuing to work until 2006. His injuries deteriorated in or about 2006, but seemed to start to deteriorate earlier.
The plaintiff has no prior history or experience with lawyers or curial proceedings. He had no access to or knowledge of a legal practitioner. His medical practitioner advised him to go to lawyers and recommended a lawyer. He attended on that legal practitioner. The legal practitioner advised him that he was entitled to remedies under the WC Act and that his claim, despite the fact that it arose from a motor vehicle accident, was being pursued under the workers compensation legislation.
His advice at the time, which, at that point in time, may have been correct, was that no additional benefits were available under the Act, for a motor vehicle accident, than were available under the workers compensation legislation. Of course, at the time that such advice was given, the plaintiff was continuing to work and the deterioration in his injuries was not such that the availability of common law damages was obvious. The advice given at that time may or may not have been correct, if it were confined to that particular point in time.
The difficulty with such advice is that the medical practitioner advised the plaintiff to attend on a legal practitioner, because the plaintiff's injuries were deteriorating. That was the situation faced by the legal practitioner at the time and should have been taken into account in the advice that was provided.
Nevertheless, the advice that was given by a person, with specialist accreditation in personal injury work, to the plaintiff was advice that there was no point in making a claim for or seeking leave to file proceedings for damages arising out of the motor vehicle accident under the provisions of the Act. The plaintiff acted on that advice.
The plaintiff, in acting on that advice, was acting in a way that a reasonable person, in the position of the plaintiff, would have acted. The Court does not criticise delay occasioned by the plaintiff, acting on legal advice to the effect that a duplication in proceedings, which will have no or little effect, should not eventuate.
To criticise a delay on that account would be inconsistent with the provisions of the Civil Procedure Act and, in particular, s 56 of the Civil Procedure Act and following. Those provisions are promulgated to achieve the just, quick and cheap resolution of the real issues in the proceedings, including the efficiency and the conduct of proceedings. Efficiency in proceedings is a matter relevant to the exercise of the court's powers and includes the efficient use of the court's resources and the interests of the parties: see s 57 of the Civil Procedure Act. It cannot be consistent with the efficient use of the court's resources and the interests of the parties to criticise or discourage the failure to take proceedings the effect of which would gain nothing more, or nothing substantially more, than proceedings that are already on foot.
Further, a reasonable person in the position of the plaintiff would be entitled to act on the advice of a legal practitioner said to be expert in the area.
The defendant relies on a passage in the plaintiff's Affidavit of 4 August 2017 at [107] that the plaintiff "received no advice from Rod Paull that there was a possible claim under the Motor Accident legislation". This is said to be inconsistent with the records.
However the reliance on [107] is misplaced. The terms of [106] of the same Affidavit have been recited or summarised relevantly, earlier in these reasons. The passage at [107] must be read in accordance with the introductory words and relates to the period from the first advice, already summarised, in 2003, to the period ending when Mr Paull left the firm.
Further, the Court rejects the inference, which the defendant seeks to have the Court draw, that Mr Paull's advice included advice that the plaintiff was under an obligation to make a claim under the Act. On the contrary, the terms of the instruction, which is before the Court, is couched in terms that seek to dissuade the plaintiff from making any such claim or taking any proceedings under the Act.
The decision of the plaintiff, to which the instruction sheet refers, namely, that the plaintiff "would like to know what he is entitled to at workers comp before making a decision on going 3rd party", was occasioned by the advice otherwise given by Mr Paull, evidence of which is uncontroverted, summarised above, to the effect that nothing would be gained by taking proceedings under the Act.
It is also clear that the plaintiff advised Mr Paull and or Shaddicks of his deteriorating state of health from 2006 onwards. Indeed, on one view of the material before the Court, Mr Paull was understandably irritated by the number of times that the plaintiff complained about his deteriorating health and what, if anything, was being done as to his claim under workers compensation.
I accept that the plaintiff remained unaware of his rights under the Act, other than the possibility of a claim being made, the result of which would be to achieve nothing more than was already being provided under the workers compensation legislation.
The defendant submits that the failure of the plaintiff to call Mr Paull to give evidence precludes the Court, in the circumstances of this case, from determining that the delay is "satisfactory". It is unnecessary for the plaintiff to have called Mr Paull.
The plaintiff gave evidence of the advice received. The instruction note is before the Court. If the defendant sought to controvert the evidence of the plaintiff, as to the advice received and that which a reasonable person would have understood from the advice received, it was open to the defendant to call that person: Blatch v Archer (1774) 98 ER 969; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. It is unnecessary for the plaintiff to call corroborating evidence in circumstances where the evidence, otherwise given, is uncontroverted.
The defendant's reliance upon the judgment of the Court of Appeal in Figliuzzi v Yonan [2005] NSWCA 290 is misplaced. The issue of whether a reasonable person in the position of the plaintiff would be justified in the delay is an evaluation which, according to Santow JA, in dissent in the foregoing judgment, is at the very least a mixed question of law and fact. At the very least, it depends upon an evaluation of the position in which the plaintiff was placed and the facts surrounding the delay.
In the case of the claimant in Figliuzzi v Yonan, the claimant had been involved, prior to the relevant accident, in a previous motor vehicle accident and was well aware of the entitlements to compensation under the Act and the obligations of reporting under the Act. Even so, Santow JA, in dissent, came to the view that the delay was reasonable and that the explanation "satisfactory".
Further, as Tobias JA points out, the claimant, in those proceedings, was aware of the purpose of CTP insurance and that it was available to a person who had been injured in a motor vehicle accident by a negligent driver. Further, the claimant was aware, because of the nature of her work with legal practitioners, that there might well be time limits included in legislation relating to the making of a personal injury damages claim. Neither of those factors, each of which was important in the analysis of Tobias JA, are factors that are applicable to the plaintiff in these proceedings.
The claimant in Figliuzzi v Yonan, worked at the Legal Aid Commission and had available to her an abundance of legal practitioners, some of whom specialised in civil litigation. Of itself, that last factor, involving, as it does, the failure to obtain available advice, even informal advice, may require that an explanation would be unsatisfactory.
That last factor, also, was a significant factor, in the analysis of Tobias JA, of the claimant's position and whether a reasonable person in that position would have sought legal advice and thereby experienced the delay. The passage at [102] in the judgment of Tobias JA, recited in the written submissions of the defendant, is based upon the availability of a qualified person from whom "a very basic enquiry" could have been made. The plaintiff was not in that position.
Also, it is clear from the acknowledgement that was signed by the plaintiff and provided to him by Mr Paull that Mr Paull's concern was common law proceedings under the workers compensation legislation. I turn then to the period following the departure of Mr Paull in 2013.
In 2013, when Mr Paull left the firm and Mr Roche took over the plaintiff's file, there was a conversation between the plaintiff and Mr Roche in which Mr Roche asked whether anyone had examined the CTP component of the issues. He was informed by the plaintiff that Mr Paull had told him (the plaintiff) that it was being conducted as a workers compensation claim and that the plaintiff's rights were covered under workers compensation. To that, Mr Roche apparently advised that he will look into it.
Mr Roche did not thereafter deal with the plaintiff in relation to any CTP component, nor advise him that there was a CTP component. As earlier stated in these reasons, Mr Roche ceased to act in July 2013. Thereafter, as earlier stated, the plaintiff was advised by a number of solicitors. The advice provided by some of them is not before the Court. The absence of any evidence relating to the advice obtained, to which earlier comments have been made, must lead to the inference that the evidence does not assist the plaintiff.
Of course, some of the later solicitors gave advice which is before the Court. An example of that is the material relating to Turner Freeman. However, as earlier stated, there is no evidence relating to Buttar Caldwell or the advice received from same, nor from Mr Barakat of AJB Stevens.
I accept that the advice from Mr Storie that seeking to make a claim under the Act was "too difficult", as were proceedings against the former solicitors, was sufficient for the plaintiff reasonably to experience the delay associated with not making a claim, at that point in time. Nevertheless, given the inferences that I draw as to the advices received, at the very least, from Buttar Caldwell and Mr Barakat, it cannot be said that the delay experienced by the plaintiff between, at least, 17 November 2014 and 27 July 2016 have been explained satisfactorily.
As a consequence the precondition in s 52(4B)(a) of the Act has not been satisfied and the leave of the Court must not be granted. It is unnecessary to fix a precise date at which the lack of proceedings became such that no satisfactory explanation is provided. It is sufficient to make clear that it was after July 2013.

Conclusion

As a consequence of the foregoing determination, the Court is precluded from granting leave to commence proceedings out of time. The time limits of the proceedings expired on 21 October 2001. The plaintiff reported the accident to Police on 22 October 1998. As earlier stated, the plaintiff complied with the duty imposed upon a person entitled to make a claim by the provisions of s 42(1) of the Act.
Further, in July 2005, Goldberg's, on behalf of Allianz WC notified Allianz CTP of a claim under the Act. The purpose of that notification was to obtain a contribution under the provisions of s 151Z of the WC Act.
As earlier stated, that provision applies where a compensable injury under the WC Act was caused in circumstances "creating a liability in some person other than the worker's employer to pay damages in respect of the injury". In 2005, when the notification was made by Allianz WC, there was no such "liability", unless the claim were accepted out of time.
Allianz CTP did not, in 2005, as would be required of any claim, reject the claim on the basis that it was out of time or that a full and satisfactory explanation had not been provided. As a consequence of accepting the claim, Allianz CTP wrote to the registered owner of the vehicle and the defendant to the effect that a claim had been made against Allianz CTP for damages.
The claim that was made by the plaintiff in September 2015 was a claim that was in furtherance of the claim of which Allianz CTP had already been notified and of which it had not relied on the expiry of the time during which such a claim could be made. It is, in those circumstances at least unjust for Allianz CTP to be claiming on 15 October 2015 and in answer to the statutory declaration of 17 November 2015 that the explanation was not "full and satisfactory".
Nevertheless, none of the foregoing is relevant to the extension of time under s 52 of the Act. Whether or not the insurance company has behaved appropriately, in all the circumstances, is not a relevant factor in determining whether a full and satisfactory explanation has been provided for the delay in making a claim for damages in proceedings in the Court.
The inappropriateness of the conduct of Allianz CTP ought not to be taken as a direct criticism of the company. It is only that Allianz CTP not only accepted the claim but contributed to the damages in a settlement with Allianz WC under s 151Z of the WC Act.
I refer to the foregoing and to the other facts already recited in aid of the acceptance of the submission that Allianz CTP, or the defendant in these proceedings, is not prejudiced in any substantial way by the lateness of the claim. All the files of Allianz WC are available, or would be available, to Allianz CTP. This includes medical evidence and tests; any surveillance that may have been undertaken; and statements from the defendant.
Further, evidence has been produced that the defendant has a memory of the accident which accords with the defendant entering a roundabout and being hit on the driver's front door of the car by a car that was already in the roundabout. This recollection, consistent as it is with the report to the Police and the recollection of the plaintiff, is available to Allianz CTP. Unfortunately, the lack of prejudice is not the determinant of the application that is currently before the Court.
Because so much attention was paid by both the plaintiff and the defendant to the issue of prejudice, it is necessary for the Court to have made the comment as to prejudice. If the Court were to have determined that a full and satisfactory explanation had been provided or was available to the Court, then the discretion that would otherwise be exercised, would be exercised in favour of an extension of time. As earlier stated, the Court finds that Allianz CTP suffered no substantial prejudice as a result of the delay.
Lastly, it is necessary for the Court to deal with the generally unjust effect of the determination it is required to make under the law. The legislature has determined, with which determination I do not take issue, that strict time limits should be applied under the Act. There are strict time limits as to the making of a claim; as to the taking of proceedings under common law; and many other aspects.
In return, the insurer is required, by the Act, to deal expeditiously with any claim that may be made and the obligations as to time are not confined to a claimant. The Act is replete with provisions that disclose a purpose associated with the expeditious making of claims and the expeditious conclusion of them. There are good reasons for the strict time limits that have been imposed.
Nevertheless, in the situation of the plaintiff, he has been advised poorly, wrongly, or incompletely. Alternatively, there has been a failure to advise, at least between 2006 and 2013, when there was a continuing obligation on his solicitor to advise him of his rights to seek and to obtain leave to make a claim under the Act. The injustice arises from that incomplete advice or failure to advise, in circumstances where there was a duty so to do.
As already determined by the Court, as a necessary aspect of these proceedings, the delay between 1998 and 2013 has been fully and satisfactorily explained and a claim made prior to 2013 (or after the deterioration of the injury in 2006) would, on that basis, have succeeded in obtaining leave from the Court to commence out of time. As already stated, the time limit during which proceedings for damages could have been taken under the Act expired on 21 October 2001.
At the time that advice was sought from the first solicitors, the right to take proceedings had already been lost. The only right that the plaintiff had in 2003 was a right to make application for leave to take proceedings out of time. The chance of success in that application was lost as a result of the advice received.
Notwithstanding the foregoing, and despite the frustration that the plaintiff must, at this point, feel, the law requires not only a full explanation, but a satisfactory explanation and, as already stated, a satisfactory explanation for the entire period of delay from 1998 has not been provided.
A reasonable person in the position of the plaintiff would have sought leave at a time before 22 September 2015 and certainly before 31 January 2017. I make it clear if it has not otherwise been made clear, that there is a full and satisfactory explanation, before the Court, for the period from 27 July 2016 until 31 January 2017.
The Court makes the following orders: 1. Summons dismissed; 2. The plaintiff will pay the defendant's costs of and incidental to the Summons, but not costs associated only with the defendant's Notice of Motion; 3. The Court will hear the parties on any special or different order for costs and reserves same.

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: 19 March 2019

Motor Accidents Act 1998(NSW)

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (5)

Cases Cited (7)

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