William Alexandra Warren v The Nominal Defendant [2015] NSWDC 29 | Case summary

DEFENDANT'S ARGUMENT

The Defendant bases its argument for dismissal on essentially three arguments.
First, the Defendant draws reference to the fact that the Plaintiff had an earlier motor vehicle accident on 7 July 2006, in respect of which, brought proceedings under the 1999 Act when he was represented by PK Simpson & Co Solicitors. That accident was also a work-journey claim. In the letter from his then solicitors, dated 5 September 2006, which was annexure M to the affidavit of Mr Galvin, sworn 27 October 2014, the following was stated:- "The Act requires that a claim for personal injury be lodged with the relevant CTP insurer together with the medical certificate and, if applicable, the employer's certificate, within 6 months of the date of accident or the date of death of the claimant. This is an important provision. In the event that a claim for personal injury is not lodged with the CTP insurer within the prescribed timeframe, the insurer will require from the injured person a Statutory Declaration to be prepared which provides "a full and satisfactory explanation" for the delay in making the claim. Acceptance or rejection of the claim then becomes a matter for the insurer. In the event that the insurer rejects your claim, an application needs to be made to the Claims Assessment and Resolution Service of the District Court of New South Wales seeking an order for the full and satisfactory explanation which has been provided for the delay in lodging the claim. In the event that the insurer rejects your explanation and subsequently the Claims Assessment and Resolution Service of the District Court rejects your explanation, that may act to finalise your claim and you may lose your rights to take further action. In the event that your claim form has not been lodged within 6 months, it is imperative that you contact your office as soon as possible to make arrangements to provide instructions in relation to the explanation of what brought the delay."
In cross-examination, the Plaintiff acknowledged receipt of the aforesaid letter. Nevertheless, at [8] of his affidavit, sworn 2 March 2015, the Plaintiff stated in relation to the earlier accident:- "…I saw my solicitors PK Simpson within 6 months of the accident so there was no need for them to make me aware of the 6 month limit. They attended to all the paperwork."
In evidence, the Plaintiff conceded that, despite suggesting in his affidavit that the earlier accident was in 2005, [4] in fact the date of the earlier accident was 7 July 2006.
Looking at the statement in [8] of his said affidavit one can only assume that the Plaintiff's opinion was predicated on a belief that the solicitors would attend to ensuring that he met the time limits in his case. It was acknowledged by the Defendant in argument that there was no issue in those proceedings of the time limit not having been met and the necessity for a full and satisfactory explanation to be provided. Whatever the situation however, it is clear that in the Plaintiff was advised of the lime limit to make a claim those proceedings.
Despite accepting in cross examination that as at 7 May 2010 he was aware that a motor accidents claim had to be lodged within six months, in re-examination, the Plaintiff conceded that the letter he had from PK Simpson, dated 5 September 2006, was at home and he did not specifically recall its contents.
Mr Galvin in his affidavit, sworn 4 March 2015, draws attention to earlier statements made by the Plaintiff relevant to this issue.
In a statement prepared by the Plaintiff, dated 28 March 2014, which was forwarded to the Defendant on 2 April 2014, the Plaintiff states in paragraphs 30:- "I was unaware that there was a 6 month limitation in which to make a motor accident claim. I have previously made a Motor Accident claim for a separate incident, but in that instance I was not the party at fault."
In a Statutory Declaration, subscribed on 1 April 2014 and enclosed in the Plaintiff's solicitor's letter of 2 April 2014 to the Defendant, the Plaintiff stated at paragraph 10:- "I have never been aware of a 6 month limitation in lodging a claim form in New South Wales until I saw the solicitors in Parramatta - Shaher Dahlan, in approximately the end of May 2012."
In a Statutory Declaration, sworn 24 July 2012, which was annexure B to Mr Galvin's affidavit, dated 4 March 2015, there appears to be no reference to the Plaintiff's experience in the earlier accident. However, in paragraph 11 of said Statutory Declaration, the Plaintiff reiterates:- "I did not make a claim originally because I thought I was at fault and I did not believe I had any rights under the Motor Accidents Act. The first time I became aware was after being prompted by the letter from Woolworths. I did not seek legal advice until 29 May 2012 and I was confused and overwhelmed by the information I had received. I saw Mr Martin on 3 July 2012 and I lodged the claim as soon as possible after that date."
In summary the Defendant's contention was that contrary to the Plaintiff's explanation, he was aware through previous experience aware of the need to obtain legal advice and commence a claim with the mandated time limit but instead allowed it to lapse.
The Defendant's second argument relates to the Plaintiff's asserted view of the circumstances and in particular that it was open to him to challenge an infringement notice issued by Police and seek legal advice.
The Plaintiff's account of the accident is particularised in the Statement of Claim in paragraphs 5-10 as follows: 1. At or about 5:50am on 7 May 2011, the Plaintiff was travelling south along Fairfield Road, Yennora in lane 2 of 2. 2. At or about the same time, the Defendant's vehicle travelled in lane 1 of 2, to the plaintiff's immediate left. 3. A stationary truck, operated by Andrew Martens occupied lane 1 of 2, thereby preventing the Defendant from continuing to travel in lane 1 of 2. 4. Without warning, the Defendant indicated briefly and traversed into the Plaintiff's lane, thereby causing the plaintiff to brake, and traverse into lane 1 of 2 so as to avoid colliding with the Defendant's vehicle. 5. The Plaintiff did not observe, and could not have observed the stationary vehicle in lane 1 of 2 prior to traversing into lane 1 in order to avoid colliding with the Defendant's vehicle. 6. The Plaintiff collided with the rear of the stationary vehicle at speed.
In the statement prepared by the Plaintiff, dated 28 March 2014, which was forwarded to the Defendant on 2 April 2014, the Plaintiff stated in paragraph 29 as follows:- ". As the Police regarded me as the driver at fault I did not make any motor accident claim following the accident. I did make a workers compensation claim. My employer is a self-insurer, Woolworths Ltd."
The traffic infringement notice was annexure A to the Plaintiff's affidavit, sworn 2 March 2015. The Plaintiff's account in [17] of his affidavit of 2 March 2015 is as follows:- "I did not see a solicitor in relation to any Motor Accident claim I might have had from the subject accident as I had been charged by the Police with negligent driving and therefore I thought that I did not have any rights under the Motor Accidents Act. I was not aware of any time limits."
At [24] of his affidavit the Plaintiff states:- "I did not make a claim originally because I thought I was at fault and I did not believe I had any rights under the Motor Accidents Act. The first time I became aware was after being prompted by the letter from Woolworths. I did not seek legal advice until 29 May 2012 when I was confused and overwhelmed by the information I had received. I saw Mr Martin [5] on 3 July 2012 and I lodged the claim as soon as possible after that date."
In summary the argument was that the circumstances of the accident and a mistaken belief that the Plaintiff says he had (that he was not able to make a claim) was not a satisfactory explanation to delay. It was contended that this was a deliberate decision made by the Plaintiff to accept the position as he understood it and not seek legal advice.
In its third argument, supporting dismissal, the Defendant anticipated that the Plaintiff would rely upon injuries sustained by him as justifying the delay. In this respect the Defendant drew attention to the contents of the report of Associate Professor Wayne Reid, dated 18 November 2012, which was annexure K to the Plaintiff's affidavit, sworn 2 March 2015. Associate Professor Reid was a clinical neuropsychologist and clinical psychologist. He performed various tests on the Plaintiff which led to the following conclusions:- "Intellectual Functioning Mr Warren's premorbid level of intellectual ability was estimated to be in the average to low-average range. On current assessment, his intellectual abilities fall within the range and are not different from his premorbid estimate. Analysis of specific aspects of his intellect reveal particular strengths in the visiospatial and constructional skills whereas he delivered average scores in other tests of verbal and non-verbal intellect. Memory: On tests of memory, his working memory, that is, his ability to hold information in memory and manipulate it, was within the average and low-average range. Furthermore, he showed no impairment within his ability to retain complex visual information following a delay. By contrast, he showed significant impairment in his verbal memory, both in his ability to learn and retain logical verbal material in the form of short stories and the ability to retain unstructured verbal material in the form of a word list, in repeated learning trials. Overall, he shows a specific verbal memory deficit."
In summary, Associate Professor Reid states:- "On neuropsychologicial assessment, he was found to be of average intellectual ability with no significant impairment in his intellectual function. He also shows no deficits in his planning and organisation skills, reasoning and problem solving. Significant impairment, however, was seen in his auditory-verbal learning and his capacity to think quickly and flexibly. Assessment of his test-taking attitudes and motivation revealed that he was performing to the best of his abilities and the deficits he shows in auditory-verbal memory are genuine."
In summary the Defendant's third contention is that notwithstanding the Plaintiff's condition, it was not such that could have any bearing on whether a satisfactory explanation for delay has been provided.

RELEVANT PRINCIPLES

In s 66(2) of the 1999 Act, full and satisfactory explanation is defined in the following terms:- (2) In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. [emphasis added]
In support of its submission that the Court could not be satisfied that a full and satisfactory explanation had been provided, the Defendant relied upon the decisions of Russo v Aiello, [6] Figliuzzi v Yonan [7] and Walker v Howard. [8]
In Figliuzzi, the Court considered the position of a claimant who had worked as a clerk at the Legal Aid Commission and had not brought proceedings under the 1999 Act, believing that the fact that she was in receipt of workers compensation payments disentitled her to claim damages in respect of the injuries sustained in the motor vehicle accident. Tobias JA at [101]-[104] stated as follows:- "101 In argument before this Court it was suggested that it was perfectly understandable for the reasonable person in the respondent's position, who was a clerk and not a lawyer and notwithstanding that she worked in a legal environment, to have reasonably believed that the fact that she was in receipt of workers compensation payments disentitled her to claim damages in respect of the injuries sustained by her in the motor vehicle accident against the appellant whom she regarded as responsible for the accident and for her injuries: see the primary judge's finding recorded in [46] above. 102 The difficulty with this approach in my view is that it asks the wrong question. It is not a question of whether the belief held by the respondent was other than bona fide or, for that matter, whether in the particular circumstances it was reasonably held. The correct question is whether, holding that belief, the reasonable person in the position of the respondent would have simply left the matter at that, ignored the possibility that the belief may have been wrong and, notwithstanding knowledge that CTP insurance was available to compensate those who had sustained injuries in motor vehicle accidents due to the negligent conduct of another driver, would have considered it unnecessary to make the very basic enquiry of a qualified person as to whether the belief was justified. 103 I would not have expected a reasonable person in the position of the respondent to behave in that way. If a person did, he or she would not have been justified in experiencing a delay of nearly five years before seeking legal advice which immediately led to the making of a claim under the MA Act. On the contrary, a reasonable person in the position of the respondent whose symptoms from the effects of her injuries had not dissipated but had in fact worsened, would have sought legal advice as to the correctness of her belief that, as the accident happened on her way to work, she was entitled only to workers compensation and not entitled to make a claim under the MA Act in circumstances where she was well aware that, but for the accident being work related, she would have had such a claim. 104 It follows that in my opinion the second limb of s40(2) is not satisfied with the consequence that the pre-condition to the grant of leave that the respondent provide not only a full but also a satisfactory explanation to the Court for her delay has not been satisfied. Accordingly, the respondent's application for leave to commence proceedings must be refused as s52(4B) mandates."
McColl JA disagreed with Tobias JA's opinion that a reasonable person in the respondent's position would be expected to have made an informal enquiry via one of the solicitors of the Commission or a person on the panel of barristers and solicitors in private practice to determine whether her opinion was correct. Nevertheless, Her Honour held as follows:- "133 I agree with Tobias JA's alternative hypothesis that a reasonable person in the respondent's position would have sought legal advice to determine the accuracy of her opinion with the correlative presumption that she would have been advised of her MAA Act rights. It is in this context that the respondent's exposure to the legal environment of the Legal Aid Commission is of some, although not determinative, relevance. 134 In the affidavit she swore in support of her application for leave to commence proceedings the respondent deposed that she had never consulted a lawyer for any reason before August 2002. Many who make claims under the MAA Act would undoubtedly be in the same position. However, whether or not the respondent felt confident enough to approach a Legal Aid Commission solicitor for advice, she was sensitised to the legal environment and was thoroughly familiar with the manner in which legal assistance could be sought. 135 From the time of her accident in September 1997 the respondent knew she had significant injuries which impacted on all aspects of her life. In my view a reasonable person in that position would have realised that the bush lawyer approach she was taking was inappropriate, or that, at best, the opinion she had formed, should be reviewed by a lawyer. 136 I do not accept that what Santow JA refers to as the counter-intuitive proposition of having a civil claim under both workers compensation and the MAA Act is as self-evident as his Honour concludes. Almost every worker in this State would, I apprehend, be aware that workers compensation rights co-exist with a right to some sort of common law damages, albeit as modified under the Workers Compensation Act 1987. That system has been in place for so long that, in my view, it might be presumed, contrary to Santow JA's surmise, that a reasonable person would at least entertain the proposition that they may well have both workers compensation rights and some sort of damages claim in circumstances where they were injured through the fault of another. 137 I would also note that following the relaxation of the rules concerning advertising by solicitors (Legal Profession Act 1987, s 38J) the community was increasingly subject to advertisements encouraging claims for damages in relation to personal injuries, to such an extent that the New South Wales Government finally imposed restrictions on that advertising by Part 14 of the Legal Profession Regulation 2002 and the Legal Profession Amendment (Personal Injury Advertising) Regulation 2003, provisions which were held to be constitutionally valid in APLA Limited v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 219 ALR 403. The short point of this exegesis is that throughout the period the respondent operated under the belief that she had only a workers compensation claim and no claim for damages in respect of her motor vehicle accident, she was moving in a community in which lawyers frequently advertised their personal injury services in newspapers, television and on the radio which at least on one view encouraged "people to claim for every slip and fall regardless of the merits of the case or their genuine need for compensation": Ministerial Statement made by the Premier of New South Wales extracted by Gleeson CJ and Heydon J in APLA Limited v Legal Services Commissioner (NSW) at [9]. 138 Such advertising frequently added the lure of a free initial consultation. The reasonable person would not in such circumstances be discouraged by the prospect of incurring legal costs at least in the first instance. 139 It belies common sense, in such circumstances to say that to a reasonable person in the respondent's position would have been justified in experiencing the same delay. A reasonable person in the respondent's position would have obtained legal advice which, it might reasonably be inferred would have been correct, would have disabused her of her erroneous opinion, would have led to her making a claim and, if necessary, commencing court proceedings within the time period prescribed by s 52(4)."
In Walker v Howard, [9] the Court of Appeal convened a five-bench court to consider s 66(2) of the 1999 Act. Giving the leading decision Allsop P, held at as follows:- "95 As is perhaps evident, the above line authorities is not without difficulties in reconciliation. The most recent authorities: Figliuzzi and Smith, both relying significantly on what was said in Russo v Aiello, take the test of satisfactoriness in the second sentence of s 66(2) as the operative standard: that is, it is not merely necessary, but it is sufficient. I agree with that conclusion. The two sentences in s 66(2) are a composite whole. Though the second sentence is expressed as "not satisfactory unless" rather than "satisfactory if", reading the section as a whole the objectified standard in the second sentence is intended, in my view, to be the operative test of satisfactoriness. 96 Respectfully, I cannot agree with Hodgson JA and Foster AJA in Diaz that the focus in the second sentence is only upon the acts or omissions of the claimant. It is the whole explanation - the full explanation contemplated by the first sentence against which the question is to be asked whether the reasonable person in the position of the claimant would or would not have been justified in experiencing. 97 As I have already said in discussing the text of these provisions, the "position of the claimant" is a concept which brings the circumstances of the claimant to the objective analysis. The position of the claimant may involve brain damage, relatives acting on his or her behalf or seeking to help him or her and solicitors retained to assist. These are all aspects of the position of the claimant. Would a reasonable person (a concept necessarily invoking some comprehension) be justified in experiencing the delay? That objective assessment may be affected by how others have acted, and who those others are. 98-100………………….. 101 It can be accepted that the process is artificial, but an objective standard is imposed and given subjective content by the factors that make up the "position of the claimant" and by the recognition of any responsible (in the sense I have discussed) parent or guardian that the claimant may have. To the extent that the test requires the subjection of the reasonable person in the position of the claimant to the circumstances in the full explanation and a "justification" of experiencing them, such a constraint demands a normative evaluation involving cognitive consideration. The evaluation must be made even though the claimant may be brain-damaged. That is to be accepted as the operation of the objective analysis. The brain damaged condition of the claimant is not irrelevant. He or she may still be helpless and unable to look after his or her interests. This will be important in the assessment as to whether a reasonable person in is or her position would have been justified in experiencing the delay."
At [108] His Honour stated "But perfection or the most rapid dispatch is not the test. The test is whether a reasonable person… would have been justified in experiencing the delay."
In a more recent decision of Lyu & Anor v Jeon, [10] the Respondent had delayed for over 2 years in notifying of the motor vehicle accident. She had made a false claim under student health insurance and her friend had agreed to pay the balance of outstanding expenses. When her friend (the driver) did not honour the agreement, the Respondent notified a claim.
In allowing the appeal, Meagher JA (with whom Macfarlan JA and Davies J agreed) summarised the relevant principles at [21]-[25] as follows:- The applicant does not contend that the primary judge erred in concluding that the explanation provided was not "full" in the sense that it was sufficiently complete as to what happened in and following the accident and as to why she did not notify a claim to the third party insurer until December 2009: see Diaz v Truong [2002] NSWCA 265; 37 MVR 158; and the discussion per Allsop P (Spigelman CJ, Campbell, Macfarlan and Young JJA agreeing) in Walker v Howard at [73], [86]-[89]. The issue is whether Her Honour erred in concluding that her explanation was "satisfactory". In Diaz v Truong, Giles JA said (at [42]) of the equivalent provision in s 40(2) of the Motor Accident Act 1988: "The standard of a reasonable person in the position of the claimant failing to comply with a duty is understandable. The standard of a reasonable person in the position of the claimant being "justified in experiencing" a delay is more obscure. Experiencing something normally means being subjected to it, the object of acts or omissions by another or others. What is meant by being justified in experiencing a delay? It must mean that the reasonable person in the position of the claimant would have been subjected to the delay and the subjection to the delay would have been justified. The hypothetical experiencing of delay must have the quality of a justified experiencing of delay." That elucidation of what being "justified in experiencing" a delay means is not controversial: see Russo v Aiello [2003] HCA 53; 215 CLR 643 at [7], [73]; Buller v Black [2003] NSWCA 45; 56 NSWLR 425 at [46], [94], [100]; Walker v Howard esp at [96]-[97], [101]-[102]. As Allsop P explained in Walker v Howard (esp at [64], [68], [69], [90], [97]), the test so expressed is a construct for the making of the evaluative judgment or assessment as to whether, given the claimant's position, the delay which occurred was reasonably justifiable; that question to be answered by asking whether a reasonable person in the claimant's position would have experienced that delay. It requires that characteristics and circumstances of the claimant be taken into account when applying the objective standard. In some cases it will not be easy to determine the extent to which the characteristics of the person in question are to be attributed to the "reasonable person" because those characteristics may not sit comfortably with the notion of the "reasonable person". The present is not such a case. Two further matters are, however, relevant in the present context. First, as Gleeson CJ observed in Russo v Aiello (at [5], [7]), what will 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 of the MAC Act. See also [74] per Gummow and Hayne JJ. Those purposes include encouraging the early investigation, assessment and resolution of claims so as to advance the interests of claimants in having prompt treatment and rehabilitation, and in having the prompt payment of lost earnings; and so as to advance the interests of insurers in more accurately predicting claims frequency and formulating premiums. The Act seeks to achieve these objects by the imposition on both claimants and insurers of time limits and obligations to act expeditiously: see also Walker v Howard per Allsop P at [90]. Secondly, as Gleeson CJ also observed in Russo v Aiello at [7]: "...what the Act requires is justification for delay; not demonstration that the delay caused no harm. ... the focus of the statutory concept of a satisfactory explanation is upon justifying delay, rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of a claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former, not the latter, question that is raised for consideration."
Then in determining the case, His Honour held at [37]-[38] as follows:- "A reasonable person in those circumstances is not to be assumed to have done likewise. Reasonable conduct may involve mistakes and errors of judgment, particularly by people who may be young and fearful or pressured. However, those errors, when subsequently appreciated, may be corrected. Reasonable conduct suggests rational and straightforward behaviour, not behaviour calculated to mislead or known to involve falsehood. By late 2007, although a person in her position might have remained concerned for the position of the applicant, that person either would have notified the insurer or, more likely, would have taken a solicitor's advice. Instead, from October 2007 onwards the respondent received significant benefits from the OSHC insurance. The objective evidence as to its terms established that the respondent would not have received those benefits if she had disclosed the true cause of her injuries. Having regard to the serious nature of her injuries, the absence of any prospect of payment from another insurer, the overwhelming likelihood is that the reasonable person in her position would then have been advised to and would have notified the insurer. That would have occurred within six months of the accident. Instead, the respondent delayed for a further two years. That delay occurred because the respondent was in receipt of payment from the OSHC insurer and had an arrangement with the applicant in relation to payment of the balance. A reasonable person in her position would not have been justified in that delay because that person would not have joined in the making of a false claim on that insurer and would have acted as I have described above. The attribution of such conduct to that hypothetical person takes account of the object of the legislation that claims should be notified promptly and without regard to the consequences for others whose liabilities may be insured by the third party insurer."
Although the comments of Meagher JA highlighted above were strictly obiter they correspond with what Allsop P said in Watson v Howard at [108] and the alternative analysis by Tobias JA in Figliuzzi v Yonan at [103]. Despite different approaches what is clear from both Tobias JA and McColl JA in Figliuzzi is that the Plaintiff's employment in the Legal Aid Commission was relevant to the determination of that case.

William Alexandra Warren v The Nominal Defendant

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