Zein v Wazen

Notices of motion

1. These reasons concern the determination of two notices of motion filed in the present proceedings brought by the plaintiff, Mr Nassim Zein, in which he claims damages for alleged negligence from the defendant, Mr Said Wazen, in respect of injuries the plaintiff claims to have sustained in a motor vehicle accident alleged to have occurred on 1 May 2015.
2. The plaintiff filed his statement of claim on 27 February 2019, which was almost 9 months outside the three year period within which he was required to commence the proceedings. That delay requires a full and satisfactory explanation: s 109 of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act").

First notice of motion

1. On 1 May 2019, the plaintiff filed the first notice of motion which seeks an order for the grant of leave to maintain these proceedings notwithstanding that they were filed out of time: s 109(1) of the MAC Act.
2. The defendant opposes the grant of that relief, and claims that the plaintiff has failed to provide the required full and satisfactory explanation for the delay in commencing the proceedings. The defendant also argues that the plaintiff has not satisfied the requirement of showing that his claim meets the quantum threshold as specified by s 109(3)(b) of the MAC Act, which in this case is $123,000 and that each such failure precludes the grant of the leave that he seeks.

Second notice of motion

1. On 10 May 2019, the defendant filed a notice of motion seeking an order that the plaintiff be required to file an amended statement of claim which joins Insurance Australia Limited trading as NRMA Insurance, as a party to the proceedings: s 119 of the MAC Act.
2. The plaintiff does not oppose the making of an order joining the insurer in the event that he succeeds in obtaining the order that he seeks in his own notice of motion: T6.49.

Evidence relied upon by the parties

1. No oral evidence was called in support of the notices of motion. The evidence was by way of affidavits, and none of the deponents of those affidavits, which are listed below, were required for cross-examination on any matter in issue.
2. The plaintiff relied upon the following affidavits: 1. The plaintiff's own affidavit, affirmed on 13 May 2019; 2. The affidavit of his solicitor, Mr Stephen Spinak, sworn 7 May 2019;
3. The defendant relied upon the following affidavits: 1. The affidavit of his solicitor, Mr Peter Utiger, sworn 15 April 2019; 2. The affidavit of Mr Peter Utiger, sworn 4 June 2019; 3. The affidavit of Mr Joseph Khoury, a process server sworn 3 May 2019; 4. The affidavit of Mr Joseph Khoury, (second affidavit) sworn 3 May 2019.
4. On 19 July 2019 that evidence was supplemented with material related to quantum, as will be identified in the review of the submissions of the parties.

Legislation

1. Section 109 of the MAC Act provides as follows: 109 Time limitations on commencement of court proceedings (1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
2. The expression full and satisfactory as referred to in s 109(3)(a) of the MAC Act is defined in s 66(2) of that Act as follows: "66 Definitions … (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."

Applicable legal principles

1. An insurer is required to give expeditious notice to a claimant as to whether it admits or denies liability for a claim: s 81 of the MAC Act; Insurance Australia Limited trading as NRMA v Ural [2015] NSWSC 620, at [20] - [22]. On behalf of the plaintiff it was submitted that decision was distinguishable from the present case because in Eades v Gunestepe [2012] NSWCA 204, the insurer's denial of liability was deemed to have occurred because no denial or admission was made by the insurer within the statutory period. In this case there is no sound basis for this Court to entertain a submission to the effect that the decision in NRMA v Ural was either wrongly decided or should have been the subject of an appeal.
2. The plaintiff has the onus of providing justification for the delay in commencing proceedings pursuant to the MAC Act. In that regard, the test to be applied is whether a reasonable person in the plaintiff's position would have been justified in experiencing the delay which has in fact occurred. Such justification must include a full explanation for the whole period of the delay. The inquiry is not satisfied by simply showing that the delay was not due to the fault on the part of the plaintiff. Importantly, in relation to the statutory damages threshold, the plaintiff must also show that, taking the plaintiff's medical evidence at its highest, the likely total damages will probably exceed the statutory threshold identified in s 109(3)(b) of the MAC Act, in this case, $123,000: Dijakovic v Perez [2015] NSWCA 174, at [109], [120], [133], [134].
3. A solicitor's conduct in the preparation of litigation may be included in the subject matter of the provision of a full explanation for delay but there is scope for a finding that an explanation may be considered to be satisfactory without exploring the blameworthiness or otherwise of the solicitor: Smith v Grant [2006] NSWCA 244, at [33] - [36].
4. The quantum threshold required by s 109(3)(b) of the MAC Act does not require a definitive finding as the probable quantum assessment in the proceedings, but a lesser level of proof, namely what the likely result would be, taking any alleged contributory negligence into account. In this case "likely" should be taken to mean that there is a real chance or prospect of the threshold being met: Sinclair v Darwich [2010] NSWCA 195, at [34] - [37].
5. The onus of satisfying the Court that the conditions for the grant of leave as imposed by s 109(3) of the MAC Act, rests with the plaintiff: Eades, at [52].
6. On the question of an application for the joinder of an insurer, in cases where the third party insurer wishes to argue that it has no obligation under the policy because it claims the plaintiff's alleged injuries were not caused by the subject accident, a conflict of interest may arise between the insurer and the insured so as to justify the joinder of the insurer to the proceedings: Insurance Australia Limited v Dent [2019] NSWCA 134, at [4], [45].

Chronology of events

1. The factual chronology of events that is relevant to the determination of the plaintiff's notice of motion is as follows: (1) 1 May 2015 Date of accident; (2) 14 May 2015 Plaintiff completed a Motor Accident Claim Form; (3) 18 May 2015 Plaintiff's solicitor lodged Motor Accident Claim Form with NRMA Insurance, the relevant CTP insurer; (4) 30 July 2015 NRMA Insurance issued a Notice pursuant to s 81 of the Act advising the plaintiff's solicitor that its investigation of the accident was ongoing, but in the interim, the insurer had made a decision to deny liability; (5) 24 October 2016 Paramount Lawyers advised Mr Spinak they had received instructions to act on behalf of the plaintiff and requested transfer of the plaintiff's file; (6) 10 March 2017 Mr Spinak advised Paramount Lawyers he had received instructions to resume his representation of the plaintiff; (7) 26 May 2017 Plaintiff lodges a Certified Asset Recovery Specialist ("CARS") Application for Exemption; (8) 8 June 2017 The State Insurance Regulatory Authority ("SIRA") advised that the plaintiff's CARS Application for Exemption was rejected; (9) 1 May 2018 Expiry of 3 year time limit for commencing proceedings: s 109 of the Act; (10) 17 August 2018 Pursuant to s 81 of the Act, on behalf of NRMA Insurance, the defendant's solicitors advised the plaintiff's solicitor that liability was fully denied on the basis that the plaintiff's claim was allegedly made fraudulently; (11) 11 September 2018 Plaintiff lodged CARS Application for Exemption, this application was withdrawn on the following day; (12) 17 September 2018 Plaintiff lodged CARS Application for General Assessment; (13) 9 October 2018 NRMA Insurance lodges Application for Exemption from CARS General Assessment; (14) 15 January 2019 SIRA issued Exemption Certificate exempting the plaintiff's claim from the CARS process; (15) 27 February 2019 Plaintiff filed his statement of claim.

1. The insurer's denial of liability on 30 July 2015 was sufficiently clear to trigger the running of time for limitation purposes.

Plaintiff's explanation for delay in commencing proceedings

1. The plaintiff's explanation for the delay as set out in his affidavit sworn on 3 May 2019, is as follows.
2. The plaintiff saw his general practitioner 13 days after the alleged accident and it appears it was then suggested to him that he consult a solicitor. He consulted his present solicitor, Mr Stephen Spinak, on 18 May 2015 and a claim form was promptly completed and forwarded to the CTP insurer.
3. In July 2015, the plaintiff was told the insurer had denied liability due to incomplete investigations. The plaintiff was told by Mr Spinak that he should wait for the insurer to complete its investigations before taking any available legal steps to pursue his claim in the hope that settlement might occur once those investigations were completed.
4. The plaintiff accepted Mr Spinak's advice and therefore took no steps to ensure that his claim was further progressed. He did so because at all times he relied upon the advice he was given.
5. Time passed. In 2016, Mr Spinak was ultimately unsuccessful in arranging for a settlement conference to take place with the participation of the insurer, and was then informed that the defendant's solicitors, Moray & Agnew had by then been retained to represent the insurer.
6. The plaintiff's understanding was that his solicitor was in negotiations with the solicitors for the insurer in 2016 and 2017, and that in 2017, his solicitor had asked for the insurer to make a final decision on liability.
7. The plaintiff understood that this was in the context where, at a time that was well within the limitation period, Mr Spinak had made an Application for Exemption to CARS on 26 May 2017, and that application was rejected on the ground that the insurer had not made a final decision on liability. The circularity of those circumstances certainly was confusing.
8. Further time passed. During that time the plaintiff had assumed his solicitor was progressing his claim appropriately and he had no reason to think otherwise. In that regard, he attended a medical examination arranged by the insurer in that period. This would have given the plaintiff some confidence in believing that his claim was progressing.
9. The insurer waited until more than three years had elapsed before issuing its final decision by which it denied liability. The plaintiff then learned that he was outside the statutory three year limitation period within which he had to file court proceedings to advance his claim in the face of the insurer's denial of liability.
10. The plaintiff's further explanation was set out in paragraph 22 of his affidavit sworn on 13 May 2019, namely: "22. I say that at all times I accepted the advice of my solicitor and that the only reason the matter had not been prosecuted within the three years was the failure by the insurer to admit or deny liability and that CARS would not grant an exemption based upon the partial denial of liability."
11. That explanation by the plaintiff was not challenged.

Solicitor's explanation for delay in commencing proceedings

1. The compendious affidavit of Mr Spinak sworn on 7 May 2019 deals sequentially with the historical events in question. It contained 110 paragraphs of explanation and 184 pages of annexed correspondence between him, the insurer and the insurer's solicitors.
2. Mr Spinak's affidavit explains the history of his involvement and professional conduct of the plaintiff's case. That affidavit is also explanatory of the delay incurred in commencing the proceedings. That explanation comprised the following discernible elements: 1. From the time he was retained on 18 May 2015, to 21 October 2016, Mr Spinak had served the plaintiff's claim form within time, sought medical evidence, arranged medical appointments, answered the insurer's request for particulars, served medical evidence on the insurer and had attempted to contact the insurer in September and October 2016 to seek a settlement conference. His five calls to the insurer met with no response: Paragraphs 1 to 15 of Mr Spinak's affidavit; 2. A delay seems to have occurred between October 2016 and 10 March 2017 when the plaintiff had dealings with Paramount Lawyers, but in the result, Mr Spinak continued to act for the plaintiff: Paragraphs 16 to 18 of Mr Spinak's affidavit; 3. On 15 March 2017, and thereafter, Moray and Agnew was acting for the insurer, and Mr Spinak engaged in responsive correspondence with that firm until 5 April 2017, at which time Moray and Agnew advised Mr Spinak that his request for a settlement conference could not be obliged because the insurer's position was that it was yet to make a decision on liability: Paragraphs 19 to 24 of Mr Spinak's affidavit; 4. On 6 April 2017, Mr Spinak lodged a MAS 2A Application for Assessment of Permanent Impairment. In the weeks that followed that lodgement, and until 18 May 2017, the defendant's solicitors quibbled with the adequacy of Mr Spinak's previous replies to requests for particulars: Paragraphs 25 to 33 of Mr Spinak's affidavit; 5. On 25 May 2017, Moray and Agnew served on Mr Spinak a MAS 2R Application form. This resulted in Mr Spinak seeking an exemption from the CARS application process. Medical assessment appointments were then advised by MAS so that the requested medical assessments could proceed on 2 August 2017: Paragraphs 34 to 39 of Mr Spinak's affidavit; 6. Between 27 June 2017 and 8 March 2018 Mr Spinak engaged in correspondence with Moray and Agnew and provided requested information, and in that time his actions included rearranging some missed appointments with the defendant's medical examiners: Paragraphs 40 to 70 of Mr Spinak's affidavit; 7. On 12 April 2018, Mr Spinak was advised by the plaintiff that his wife had cancer, and that consequently, he was unable to think about the requirements of his claim at that time. Thereafter, in the period up to 16 July 2018 Mr Spinak engaged in responsive correspondence with Moray and Agnew, replying to further particulars and requests as sought: Paragraphs 71 to 76 of Mr Spinak's affidavit; 8. On 17 August 2018, some 19 weeks after the limitation period expired on 1 May 2018, Moray and Agnew advised Mr Spinak that the defendant's liability investigations had been finalised, that the insurer now fully denied liability on the basis that the insurer alleged that the plaintiff's claim was fraudulent: Paragraph 78 of Mr Spinak's affidavit; 9. On 22 August 2018, Mr Spinak requested a copy of the insurer's liability reports and on the same date, he briefed counsel to advise. Thereafter, various procedural steps were taken by Mr Spinak through the CARS process. That process, which was somewhat intricate, culminated in a CARS case manager informing Moray & Agnew that he was not satisfied that the insurer's allegation of fraud related to the circumstances of the subject accident, and as a result, the CARS case manager called for further submissions: Paragraphs 79 to 99 of Mr Spinak's affidavit; 10. Between 20 December 2018 and 10 January 2019, the parties exchanged further submissions, which on 17 January 2019, resulted in the issue to the plaintiff of a CARS certificate of exemption to certify that the plaintiff's matter was exempted from the CARS General Assessment process: Paragraphs 100 to 102 of Mr Spinak's affidavit; 11. Thereafter, between 21 January 2019 and 22 February 2019, the plaintiff's legal advisors prepared for the filing of court process and on 22 February 2019, the plaintiff's statement of claim was filed albeit out of time: Paragraphs 103 to 106 of Mr Spinak's affidavit; 12. On 6 March 2019, the solicitor for the defendant, Mr Utiger, advised Mr Spinak that he had no instructions to accept service of the plaintiff's statement of claim. As a consequence, attempts were made to serve the defendant with that document in circumstances where the CTP insurer was aware of that process: Paragraphs 107 to 109 of Mr Spinak's affidavit.

Submissions of the parties

1. The defendant relied upon a written outline of submissions dated 5 July 2019: MFI "3". The plaintiff relied on a commentary (MFI "2") that related to the series of paragraphs set out in Mr Utiger's affidavit sworn on 15 April 2019.
2. In essence, the defendant's insurer submitted that the limitation period does not cease to run where an application to CARS does not result in the issue of a certificate of assessment or a certificate of exemption, and accordingly, court proceedings ought to have been commenced on 1 May 2018.
3. The defendant submitted that the explanatory account given by the plaintiff was neither full nor satisfactory because it did not include relevant inclusions as to the plaintiff's knowledge and belief as to the requirements for bringing proceedings within the time specified by statute and that it remains unknown as to whether the plaintiff was ever advised, either by Mr Spinak or by Paramount Compensation Lawyers, as to such matters. Accordingly, it was submitted that the plaintiff's explanation was not satisfactory.
4. At the conclusion of the hearing on 5 July 2019, the parties were given leave to within 7 days forward short written submissions to supplement their oral submissions. The applicant plaintiff's supplementary submissions were received on 9 July 2019. The applicant plaintiff's supplementary submissions did not deal with the question to be addressed, namely the provision of quantum-related evidence that had already been served on the defendant so that it could be determined whether or not the plaintiff has met the requirements of s 109(3)(b) of the MAC Act: T11.48; T13.9. The respondent defendant did not forward any supplementary submissions.
5. In light of those circumstances, the matter was relisted on 19 July 2019 to seek clarification of the evidence to be relied upon to determine the plaintiff's notice of motion.
6. On 19 July 2019 the parties were informed that no quantum material had been tendered relevant to the consideration of whether the requirements of s 109(3)(b) of the MAC Act had been satisfied.
7. Subsequently, with the consent of the defendant, the plaintiff forwarded a bundle of quantum materials which is now marked Exhibit "A". This comprised a damages schedule totalling $454,879.16, a MAS Certificate dated 7 August 2017 from Dr Nel Wijetunga, two reports by Dr Nadeem Sheikh, a rehabilitation and pain management specialist, each dated 1 March 2018, and a report dated 2 November 2015 from Dr Vijay Maniam, an orthopaedic surgeon.

Consideration of explanation

1. My consideration of the elements relevant to a grant of the leave sought by the plaintiff now follows.

Whether proffered explanation is full

1. In this case the material relied upon by the plaintiff does not provide any evidence as to whether or not he was advised by either of his identified solicitors as to whether there was a limitation period with which he was required to comply. Furthermore, neither Mr Spinak nor anyone from Paramount Compensation Lawyers has provided any evidence as to what if any advice was given in that regard.
2. However, that said, I consider that in this case specific evidence is not required because of the nature and extent of the matters set out in Mr Spinak's affidavit, as summarised at [32] above. In particular, the sequential actions of the insurer in arranging medical examinations as summarised at sub-paragraphs (5) and (6) of [32] above, and the related correspondence over particulars would have instilled some confidence in the plaintiff's solicitor assuming that the matter was progressing, albeit slowly.
3. On 12 April 2018, 18 days before the limitation period was to expire, when the plaintiff told his solicitor that his wife had cancer and he was therefore unable to think about his claim, the solicitor would not have been able to commence proceedings without specific instructions to do so. If in hindsight that is to be considered to be a shortcoming on the solicitor's part in justifying the delay, then I consider that it is one which should not have adverse consequences for the plaintiff: Smith v Grant [2006] NSWCA 244, at [74].
4. I consider that to be so, where the surrounding circumstances otherwise pointed to an appearance of regularity, in that the insurer had not yet issued its final denial of liability pending completion of its liability investigations until 17 August 2018, which was 109 days after the expiry of the three year limitation period for commencing proceedings, and the exchange of particulars and the arrangement of medical examinations was continuing to proceed without demur. The circumstances were confusing.
5. I therefore find that the proffered explanation for the delay has been full within the meaning of s 109(3)(a) of the MAC Act.

Whether proffered explanation is satisfactory

1. This raises the question of whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay that has occurred in this case: s 66(2) of the MAC Act.
2. The position of the plaintiff, in the critical 18 days before the expiry of the limitation period was characterised by two standout considerations.
3. The first such consideration was that he had no knowledge, understanding or belief that there was any non-compliance or irregularity with the pursuit and progress of his claim against the defendant. He was entitled to believe, absent evidence to the contrary, that his matter was in the hands of a solicitor who must have been presumed to have been acting with due skill and competence.
4. The second such consideration is that in the 18 days in the lead-up to the three year limitation period expiring, the plaintiff was personally unable to deal with his claim. I infer from his earlier and subsequent pursuit of his claim that he had been in a position to give the matter proper attention, and had he been told of the impending expiry of a critical limitation period, he would not have allowed that period to lapse without instituting court proceedings.
5. I find that the combined circumstances referred to in the preceding paragraphs are a satisfactory explanation within the meaning of s 66(2) of the MAC Act.

Whether s 109(3)(b) threshold is satisfied

1. In this case the parties agree that the relevant threshold identified in s 109(3)(b) is $123,000 (25 per cent of $492,000).
2. The particulars of injury and disability as filed provide no reliable insight into the level of total damages that would likely be awarded in this case. That level of insight could only reliably come from an analysis of medical evidence in a case such as this: Dijakovic v Perez [2015] NSWCA 174, at [120].
3. Initially, the plaintiff tendered no medical evidence in support of his application. The only evidentiary material that touched upon the 25 per cent quantum threshold as required by s 109(3)(b) of the Act was an annexure to Mr Spinak's affidavit in which Mr Spinak expressed the opinion, without reasons, to the effect the threshold was satisfied: Paragraph 110 of Mr Spinak's affidavit. The defendant objected to that opinion evidence.
4. Whilst opinion evidence may in some limited circumstances be relevant to the question at hand, I consider that in this instance, Mr Spinak's opinion should carry no weight as he has not been qualified as an expert in quantum assessment, and even if he was shown to have that expertise, his stated opinion is not supported by the level of reasoning required by UCPR Sch 7 cl 3(d).
5. That matter was ventilated in the course of submissions on 5 July 2019. Consequently, the parties were given leave to supplement their submissions. As the supplementary submissions did not deal with this question, the matter was listed on 19 July 2019 for that matter to be identified again.
6. Having examined the bundle of material most recently tendered and marked Exhibit "A", I am satisfied that if the opinion evidence within that exhibit is accepted at trial, there is a real chance or prospect that the plaintiff could achieve a monetary outcome in excess of $123,000 in this case: s 109(3)(b) of the MAC Act; Sinclair v Darwich [2010] NSWCA 195, at [34] - [37].
7. Accordingly, I find that the plaintiff has now satisfied the assessment threshold required by s 109(3)(b) of the MAC Act.

Conclusion

1. The plaintiff has established an entitlement to the grant of leave that he seeks.

Disposition

1. For the above reasons, the plaintiff's motion has succeeded. The defendant's motion seeking to add the insurer as a defendant must also succeed, as explained at [6] above.

Costs

1. The defendant should pay the plaintiff's costs of the first motion. All costs should be assessed on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.
2. In respect of the first motion, the defendant should pay the plaintiff's costs except in respect of the costs incurred for the hearing on 19 July 2019. The plaintiff should pay the defendant's costs for that hearing.
3. The costs of the second motion should be costs in the cause.

Orders

1. I make the following orders: 1. In the notice of motion filed by the plaintiff on 1 May 2019, pursuant to s 109 of the MAC Act, the plaintiff is granted leave to commence and to maintain the present proceedings; 2. The plaintiff's costs of the notice of motion filed on 1 May 2019 are to be paid by the defendant, except in relation to the short hearing on 19 July 2019, in respect of which the defendant's costs of that hearing are to be paid by the plaintiff; 3. In the notice of motion filed by the defendant on 10 May 2019, pursuant to s 119 of the MAC Act, Insurance Australia Limited trading as NRMA Insurance is joined as a party to the proceedings; 4. The costs incurred by the parties in respect of the defendant's motion filed on 10 May 2019 are to be costs in the cause; 5. Within 14 days of today's date, the parties are required to agree upon and file an amended statement of claim that gives effect to order (3) above; 6. The costs the subject of orders (2) and (4) above are to be agreed or assessed on the ordinary basis unless a party is able to show the basis for some other costs order; 7. The exhibits may be returned; 8. Liberty to apply on 7 days' notice if further or other orders are required.

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: 09 August 2019