HENRICKS v AGNEW SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 5 September 1997, 23 October 1997 [1997] NSWCA 145 DAMAGES under Motor Accidents Act 1988 — time limits in relation to claim of damages — "late claims" — consideration of statutory provisions — Motor Accidents Amendment Act 1995 and 1997 — consideration of test regarding granting of leave to commence proceedings beyond time — Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 considered. Cole JA On 28 February 1997 Phegan ADCJ granted leave to the respondent pursuant to s52(4) Motor Accident Act 1988 as amended to commence proceedings in respect of a claim arising out of a motor accident which occurred on 26 June 1990, provided such proceedings were commenced by 28 March 1997. So far as the material placed before this Court discloses the form of order has not been taken out nor have the proceedings been commenced. On 19 May 1997 this Court granted leave to Craig Wilson Agnew, the prospective defendant, to appeal. FACTUAL BACKGROUND TO THE APPLICATION The respondent suffered a lifting injury to his back whilst at work on 31 October 1989, which injury caused him sharp and severe pain. Thereafter intermittently prior to June 1990 he had periods of time off work and had physiotherapy treatment. On 29 June 1990 he was involved in a motor accident whilst travelling to work. It is his case that that motor vehicle accident occasioned an aggravation to his pre-existing back injury for which the appellant is responsible entitling the respondent to damages under the Motor Accidents Act 1988. The respondent's employers workers compensation insurer was Manufacturers Mutual Insurance (MMI). That insurer arranged for the respondent to be examined by Dr O'Donovan on 28 August 1990, he having apparently had a CT scan on 25 July 1990 at Sydney Hospital. A further CT scan was taken on 14 August 1991 after he saw Dr Dan on 12 August 1991. In late 1991 or early 1992 Dr Dan performed an epidural block. A Dr Rothery, an MMI in-house doctor, conducted a review of the respondent on 11 June 1993 having reported on him on 16 July 1990. However his back problem was not cured. Following a further CT scan in late 1993 or early 1994 he was referred again to Dr Dan who on 19 August 1994 performed a laminectomy. In May 1995 the respondent alleges he developed pain in both legs and ceased work. He had an MRI scan in August 1995. Throughout this time the respondent had been receiving appropriate workers compensation payments. On 5 October 1995 he consulted a solicitor, Mr Cathcart, and was given advice regarding his worker's compensation entitlements. He was also advised of his entitlement to claim for damages under the Motor Accidents Act and was given advice regarding time limits under that 2 UNREPORTED JUDGMENTS Act. However no claim contemplated by the Motor Accidents Act was served on the appellant, or its insurer AAMI, until 6 May 1996. The solicitor's letter of claim of that date stated: "We are aware that service of the Personal Injury Claim Form is late but are also aware that the offending driver was given notice of the claim on 19 December 1990 by MMI, the workers compensation insurer and yourselves on 18 October 1990, well within six months of the accident. We also note that you have had access to medical reports regarding Mr Agnew." With the letter of claim was enclosed a statutory declaration said to provide a "full and satisfactory explanation for the delay in making the claim". In substance the respondent stated in the statutory declaration that he believed all his rights lay within the workers compensation legislation and was not aware of any separate entitlement to damages under the Motor Accidents Act until he consulted his solicitor on 5 October 1995. He explained that he had been hopeful that the laminectomy performed by Dr Dan on 19 August 1994 would alleviate his problems but as it had not he, being worried about his future, had consulted his solicitor. Concerning the two traumas suffered to his back, he said: "Before the motor vehicle accident I injured my back at work on 31 October 1989. I was aware that there was a lot of argument after the motor vehicle accident about which accident was responsible for my back pain and I now understand that there was argument in this regard between my workers compensation insurer MMI and the relevant third party insurer AAMI. Until recently I had no advice as to which accident was the cause of my symptoms but legal advisers, after reviewing all the medical evidence and my history of symptoms have indicated that the motor vehicle accident was probably the cause of the lumbar spine injuries noted in CT scan dated 25 July 1990, roughly a month after the motor vehicle accident. There was debate, to which his Honour referred, regarding the extent of communication between MMI and AAMI, and its consequences. Further, no explanation was given in the notice of the claim or the attached statutory declaration concerning delay between the date of consultation with the solicitor, being 5 October 1995, and the date of serving of the claim form, being 6 May 1996. On 23 May 1996 AAMI rejected the respondent's explanation for late lodging of the claim. In so doing it stated: "We point out we do not have management of a Workers Compensation Claim and we believe we have been severely prejudiced by your client lodging his claim almost six years after the event." On 21 August 1996 the respondent commenced proceedings against the appellant. The statement of claim was served on AAMI on 22 August 1996. On 26 September 1996 AAMI's solicitors wrote: "Your proceedings have been commenced beyond the period allowed under s52(4) of the Motor Accidents Act without leave. We are instructed to move immediately to have them dismissed. A notice of motion seeking such dismissal was filed on 27 September 1996. It appears that matter came before the Court on 28 November 1996 when the proceedings were dismissed but on the same date there was apparently filed in court a handwritten notice of motion seeking the granting of leave pursuant to s52(4) "to proceed out of time". It was that notice of motion which came before Phegan ADCJ on 27 and 28 February 1997 and resulted in the orders the subject of this appeal. URJ HENRICKS v AGNEW (Cole JA) 3 THE JUDGMENT The discursive judgment referred to the decision of this Court in Salido v Nominal Defendant!. His Honour expressed his task in the following way: "T have to be satisfied that in the result justice has been done between the parties, but that in reaching that more general conclusion, there is first of all the requirement that the plaintiff is under an obligation to provide, and bears the onus of providing, a full and satisfactory explanation for failure to commence proceedings within the time prescribed and secondly, if that is the case, that by allowing the matter to proceed, undue prejudice is not caused to the defendant." His Honour went on to say: "Prima facie there has not been a full and satisfactory explanation of the delay, at least to the extent of the period of some six to seven months between the time the plaintiff's solicitors were instructed and the time a notice was finally served". Concerning prejudice, his Honour said: "Secondly, again prima facie, I accept that some prejudice has been caused to the defendant by virtue of having no opportunity to examine the plaintiff in a case where confusion with regard to the real cause of the ongoing condition of the plaintiff is likely to have been further clouded by time, and that again on the face of it, the longer the defendant was kept uninformed, the more prejudice was likely to have arisen out of that particular aspect of the case." His Honour then referred to what he described as "my overriding concern". He said: "My overriding concern however, is the extent to which an injustice might be done to a plaintiff in circumstances of this kind, if too much importance is attached to the defendant's prejudice. On balance, I am not persuaded that the prejudice to the defendant is of a sufficiently substantial kind to justify refusing to grant leave for the matter to proceed." The basis for that view was said to be, first, that the lapse of time between "the original injuries and the first opportunity which the third party insurer had to make some investigations, was not as long as appeared from the much later issue of the notice, almost six years after the accident". And second, the nature of the injury caused by the two incidents affecting the same area of the back resulting in "inevitable difficulties created by the overlap" "does leave some doubt as to how much more certainly might have been produced from further medical examinations at the time, or closer to the time, the injuries were actually sustained". Those two factors were balanced with an "overriding" or prominent concern for the plaintiff His Honour said: "But as I have already indicated, the one party in this case, who is entirely blameless in the delays which have been caused, is the plaintiff. And the one person who will suffer most if leave is not granted is the plaintiff". His Honour thought it not unreasonable for someone without legal training to have proceeded on the misapprehension that his entire entitlements were those flowing from workers compensation. His Honour noted that the "the plaintiff has on the other hand been the victim of a certain degree of, at least inattention, if I can put it that strongly, on the part of almost everyone else involved in this matter". His Honour then criticised the worker's compensation insurer, MMI for "not displaying either a sense of responsibility or as an efficient a system as it 1. (1993) 32 NSWLR 524. 4 UNREPORTED JUDGMENTS should". That was a reference to computer generated letters which MMI said it had sent to AAMI but which AAMI said it had not received. His Honour went on to criticise AAMI as being "not blameless" in that they relied on "that early history of the matter to justify their standing off and continuing to insist that the matter be put right by the worker's compensation insurer, rather than, as Mr Ryan has quite plainly indicated, moving promptly once they were placed on notice that there was a potential claim". The third person criticised was the plaintiff's solicitor who had "somewhat naively I have to say, relied on senior counsel to produce an opinion quickly..." and had "also overlooked the opportunity as a matter of precaution to serve a notice immediately he was instructed while senior counsel's advice was sought". The attribution of blame or fault to the two insurers and the plaintiff's solicitors underlined, in his Honour's mind "that the one person who cannot be considered as in any way responsible for the delay beyond the fact that in the technical sense, he did not initiate proceedings, is the plaintiff. It is that concern that finally leads me to the conclusion that I should grant the leave which is being sought". In challenging the judge's finding the appellant has contended that the exercise of discretion miscarried. It was argued that his Honour misapprehended the facts and misapplied the principles referred to in Salido and Brisbane South Regional Health Authority v Taylor?. His Honour had not given adequate weight to the circumstance that the notice of claim was given just under six years after the accident, had disregarded demonstrated prejudiced to the appellant, and had inappropriately given a primacy to the interests of the plaintiff respondent. The respondent, on the other hand, contended that although no formal notice of claim was given until May 1996 the matter should be treated as though the insurer, AAMIL, had knowledge of the claim in 1992, and should then have taken steps through MMI to have the respondent examined if it wished that to occur. Further it was argued that the appellant had available to it medical reports generated from persons not in the respondent's interests, and if the notice of claim had been given within the three years contemplated by the Motor Accident Act, the insurer would, in reality, be no worse of than it was now in seeking to distinguish the effects of the work injury and the motor vehicle accident. Having regard to the fact that liability was not in issue, there was no prejudice to the conducting of a fair trial in consequence of any delay in notifying the claim. THE LEGISLATIVE FRAMEWORK The Motor Accidents Act 1988 was, in addition to prior amendments, amended in 1995 and 19973. Prior to the 1995 amendments s52(1) provided: "A claimant is not entitled to commence court proceedings against another person in respect of a claim until six months have elapsed since notice of the claim was given to the other person and, if required by s43(4), to the other persons insurer'. The Act then contemplated the late making of claims. S43A(1) provided that "a claim may be made more than six months after the date determined under s43 (in the section called "a late claim') if the claimant provides a full and 2. (1996) 70 ALJR 866. 3. Motor Accidents Amendment Act 1995 No 66; Motor Accidents Amendment Act 1997 No 3. URJ HENRICKS v AGNEW (Cole JA) 5 satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third party insurer concerned (if there is one) or to the Nominal Defendant'. $43A(3)(c) provided: "This subsection applies if the person against whom the late claim is made is insured by a third party insurer. (c) If court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) who has not lost the right to challenge the claim on the grounds of delay may apply to have the proceedings struck out on the ground of delay only within two months after the statement of claim is received by the insurer." Here the claim lodged on 6 May 1996 was a late claim rejected on 23 May 1996. The proceedings commenced on 21 August 1996 were the subject of a motion to have them struck out dated 27 September 1996. Thus s43A(3)(c), if operative, was engaged by the insurer. They were struck out by Sidis DCJ on 28 November 1996. That resulted in the respondent being obliged to move pursuant to s52(4) which then provided: "A claimant is not entitled to commence proceedings in respect of a claim more than three years after the date on which the claim must be made in accordance with s43 except with the leave of the court in which the proceedings are to be taken." It was in implementation of that subsection that the handwritten notice of motion was filed on 28 November 1996, the day in which the prior proceedings were dismissed. The Motor Accidents Amendment Act 1995 was proclaimed to come in to force on 1 January 1996.4 S2(2) of the amending Act provided that certain provisions are taken to have commenced at midnight on 26 September 1995. Those provisions included those in para[43] inserted in Schedule 4B, Pt7, including s17(1) and s(7). By s17(1) the provisions of s43A(1) inserted by the 1995 Act applied to claims made on or after the commencement of that provision. That meant that the amended s43A, inserted by the 1995 Act, did not commence until January 1996 and applied only to claims made after that date. Thus the new s43A applied to this claim. S43A(6) was similar to s43A(3) of the earlier legislation. S43A(6)(c) and s(7) provided: "This subsection applies if the person against whom the late claim is made is insured by a third party insurer. (c) if court proceedings are commenced in respect of a late claim, an insurer (or the person against whom the claim is made) may apply to have the proceedings dismissed on: (i) the ground of delay, or (ii) in the case of a late claim that is made more than twelve months after the date determined under s43, the ground of the amount of damages or both only within two months after the statement of claim is served on the defendant and received by the insurer. The insurer (or the person against whom the claim is made) may only apply to have the proceedings dismissed on the ground of delay if the insurer (or the person) has not lost the right to challenge the claim on the ground of delay. 4. See s2(1) and proclamation New South Wales Government Gazette No 156 (22 December 1995). 6 UNREPORTED JUDGMENTS (7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively or in addition in the case of a late claim that is made more than twelve months after the date determined under s43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under s79 or s79A as at the date of the relevant motor accident." AAMT engaged the provisions of s43A(6) as amended by the 1995 Act and had the proceedings commenced dismissed. Again that left the respondent only with the remedy given by s52(4). S52(4) was amended by the 1995 Act, and operated from 1 January 1996. There was also inserted a new subs(4A), subs(4B) and subs(4C). $52(4) and s(4B) are relevant to this claim. "52 (4) 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. (4B) 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 per cant of the maximum amount that may be awarded for non-economic loss under s79 or 79A as at the date of the relevant motor accident." S2 Motor Accident Amendment Act 19975 provided: "2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by this section. (2) The amendments made by this Act to s43A(6) and s52 of the Motor Accidents Act 1988 are taken to have commenced on | January 1996. (3) The amendments made by this Act to cll7 of Schedule 4 to the Motor Accidents Act 1988 are taken to have commenced at midnight on 26 September 1995." The date proclaimed under s2(1) was 23 May 1997. The amendment made to s43A(6) referred to in s2(2) was to omit the words "this subsection applies if the person against whom the late claim is made is insured by a third party insurer" and substitute "this subsection applies if the late claim is made against the nominal defendant or a person who is insured by a third party insurer. A reference in this subsection to an insurer includes a reference to the nominal defendant'. The amendments to s52 are not presently material. The amendments to cl17 of Schedule 4 referred to in s2(3) included para[29] and para[30] which deleted s43A(1) from cl17(1), and added in cl17(2) the reference to Schedule 1[15] of the 1995 Act, being the whole of the amendment 5. Act No 3 1997. URJ HENRICKS v AGNEW (Cole JA) 7 to s43A. Thus the provisions of s43A as effected by Schedule 1[15] of the 1995 Act apply only to motor accidents occurring after the 26 September 1995 or, perhaps, after 1 January 1996. Thus they have no application to the claim in respect of the present motor vehicle accident. In the result in respect of this accident, and in respect of this claim, the provisions of s43A and s52 as enacted prior to the 1995 amendments apply except that s52(3) as then enacted was repealed as form 1 January 1996. The Motor Accidents Amendment Act 1995, Schedule 1[26], s2 and cl3 introduced s17(7) which provided: "A claimant who was subject to the requirements of s52(3) immediately before its repeal by the Motor Accidents Amendment Act 1995 does not have to provide a full and satisfactory explanation to the court for the delay in commencing proceedings.' There was thus no statutory requirement that this claimant seeking leave to commence proceedings in respect of the claim more than three years after the date upon which the claim was required to be made in accordance with s43 provide a full and satisfactory explanation to the court for the delay, presumably in commencing the proceedings. In Salido v Nominal Defendant®, which addressed a statutory regime incorporating s52(3) requiring the provision of a satisfactory explanation for delay, the Chief Justice made clear that the ultimate test of whether leave to commence proceedings beyond time should be granted was whether it was "fair and just" to do so. The circumstances in which leave might be granted need not be extraordinary or special. If the applicant, carrying the onus, satisfied the court that "it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute" leave would be granted. Various factors which might guide the court in reaching a decision whether the onus of establishing that it was fair and just for leave to be granted had been satisfied were indicated. In Brisbane South Regional Health Authority v Taylor,? Toohey and Gummow JJ enunciated a not dissimilar test. Their Honours said, dealing with a different statutory provision: It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd: "Tt is for the respondent to place in evidence sufficient facts to lead the court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.""8 Later their Honours said: "Once an applicant satisfies para(a) and para(b), the Court has a discretion to extend the time for the bringing of an action. A material consideration (the most important consideration in many cases) is whether, by reason of the time that has 6. (1993) 32 NSWLR 524 at 532. 7. (1996) 70 ALJR 866 at 868. 8. (1996) 70 ALJR 868. 8 UNREPORTED JUDGMENTS elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the application had not begun proceedings until just before the limitation period had expired". In discussing prejudice, their Honours said: "Tn this regard we have difficulty with the notion of weighing prejudice to an applicant against prejudice to the respondent. In one obvious sense the prejudice to the present respondent is absolute if her application is refused. She can never litigate her claim. But that cannot be enough itself to warrant an extension of time; in truth there would be no discretion to be exercised. For that reason we do not accept the respondent's argument that the District Court fell into error in failing to balance the prejudice to the appellant against the prejudice against the respondent. It may be appropriate to temper that approach and to say that because the respondent has satisfied para(b) of subs(2), there is therefore evidence to establish her right of action. Even then, a weighing process is not called for. The real question is whether the delay has made the chances of a fair trial unlikely. Tf it has not there is no reason why the discretion would not be exercised in favour of the respondent". McHugh J, with whom Dawson J agreed adopted, in some respects, a slightly different approach. His Honour said: In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." [25] But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. McHugh J noted that there were four broad rationales for the enactment of limitation periods: "First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims URJ HENRICKS v AGNEW (Cole JA) 9 can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liability beyond a definite period. As the New South Wales Law Reform Commission has pointed out: "The potential defendant is thus able to make the most productive use or his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served... Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, rate payers or tax payers of today ultimately liable for a wrong of the distant past as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for the limitation periods is that the public interest requires that disputes be settled as quickly as possible""'.9 DID THE DISCRETION MISCARRY? No doubt because the parties before him addressed the issue of whether there had been a full and satisfactory explanation of delay, because there was not then an appreciation that the statutory requirement in that respect previously operative in relation to this accident had been repealed, the trial judge gave some emphasis to the finding of absence of explanation of that delay. S17(7) makes clear that this applicant did not have to provide a full and satisfactory explanation to the court for the delay in commencing proceedings. Nonetheless the applicant bore the onus of establishing that it was fair and just that a discretion be exercised in his favour to extend the time for bringing an action having regard to the background reasons for limitation periods as noted by McHugh J, the ultimate test being whether the applicant had satisfied the court that, notwithstanding the delay, and its effects, a just and fair trial could still be held. I do not think that the trial judge approached the question in that way. He approached it by considering as is "overriding concern"... "the extent to which an injustice might be done to a plaintiff in circumstances of this kind, if too much importance is attached to the defendant's prejudice". In stating that "I am not persuaded that the prejudice to the defendant is of a sufficiently substantial kind to justify refusing to grant leave for the matter to proceed", his Honour misstated the test and misapplied the onus. The "blamelessness" which the trial judge emphasised as attaching to the plaintiff, if it be a relevant consideration at all (which I doubt), was given inappropriate weight in considering the true issue of whether a fair and just trial could now be held. Similarly whether the worker's compensation or motor accident insurers, or the plaintiff's solicitors, had been inattentive or unco-operative do not address the true question of whether a fair trial can now be held. For these reasons in my view the trial judge's discretion miscarried. WHAT SHOULD THIS COURT DO? Like the High Court in Brisbane South Regional Health Authority, this Court is thus faced with the problem of whether the matter should be remitted to the District Court so that the discretion can be re-exercised, or whether this Court should exercise the discretion itself. Here no questions of credit are involved and the parties have placed before the Court all material which they wished to rely upon subject to one matter to which I will refer. In those circumstances in my view this Court should exercise the discretion imposed by s52(4). 9. (1996) 70 ALJR 871-872. 10 UNREPORTED JUDGMENTS The respondent gave no explanation for the seven months period of delay between consulting a solicitor and lodging the notice of claim. Counsel for the respondent submitted that the trial judge should have granted an adjournments to enable such an explanation to be given notwithstanding that no application in that respect was made. It was said that adjournments were frequently given to enable solicitors to given evidence of delay. The submission is without substance. Counsel for the appellant before the trial judge made plain that it was for the respondent to determine whether it wished to call additional evidence before addresses commenced. Clearly a decision was taken by the respondent not to do so and thus the matter was litigated on the basis that there was no explanation of that seven months delay. In the result this was a matter which is in truth irrelevant to the proper exercise of discretion. Liability not being in issue, were the respondent's claim to be litigated, the issue which would arise is the extent to which the injuries and disabilities from which the respondent plainly suffers are attributable to the motor accident, or to the work injury. The trial judge found prima facie that there was some prejudice to the defendant by virtue of having no opportunity to examine the plaintiff "in a case where confusion with regard to the real cause of the ongoing condition of the plaintiff is likely to have been further clouded by time". His Honour was correct to so find. Further, there was evidence from an orthopaedic surgeon, Dr Limbers, that "unfortunately, it is impossible to distinguish between the effects of the work accident (for which your insurers are not responsible) and the effects of the car accident for which you are responsible". He expressed the opinion that had he had the opportunity of examining the respondent within six months of the car accident he would have been in a better position to say how much of the problem was due to that accident and how much was due to other factors, including the work injury. That evidence was not contradicted. Once that position is reached it seems to me that it cannot be said that the respondent discharged the onus of establishing that it is likely that there could now be a fair trial between the respondent and the appellant for the appellant has been denied the opportunity of obtaining what may have been persuasive evidence on that issue. The substantive response made to that contention was that, in addition to the CT scans which show the impirical state of the respondent's back at various times, all post-motor accident, there was available reports from Dr Rothery dated 16 July 1990 and 11 June 1993, both post-accident. They were reports prepared on behalf of an insurer, MMI. Further there was a report from Dr O' Donovan dated 28 August 1990, as well as the reports of Dr Limbers. Thus there was independent medical evidence available to the appellant and AAMI, and AAMI should be regarded as having had access to those reports and as having adopted them because they were at some time forwarded to AAMI by MMI and AAMI had "intermeddled" in negotiations regarding a settlement of claims made by MMI upon AAMI for repayment of medical and other expenses..., and thus, so the argument ran, by the respondent on AAMI, from the accident. There are significant difficulties with this submission. There was debate regarding when the medical reports were made available to AAMI. It is unnecessary to resolve that debate. There are difficulties in regarding MMI as the agent of the respondent for the purposes of a making a claim against the appellant or AAMI. That also does not need further exploration. It is difficult to regard AAMT as "intermeddling" in any settlement negotiations when it simply advised MMI that once it had accumulated all costs said to flow from the motor vehicle accident AAMI would consider making a settlement offer. URJ HENRICKS v AGNEW (Stein JA) 11 However the principle difficulty in the respondent's submission is that none of the medical evidence to which I have referred distinguishes between the consequences of the work injury and the motor vehicle injury It is the detection of those consequences which has, on the unchallenged evidence of Dr Limbers, now been clouded by the passage of time. That means there cannot now be a fair trial between the appellant and the respondent. There is one remaining submission of the respondent which I should mention. It was contended that on the assumption that certain computer generated correspondence which MMI said it sent but AAMI denied it received, the matter should be approached on the basis that from 1992 AAMI was aware of the motor vehicle accident. Accordingly, so the argument ran, it should then have arranged for a medical examination of the respondent. If the respondent would not co-operate with it then it should have arranged for MMI as the worker's compensation insurer to require the respondent to be medically examined by a doctor nominated by AAMI. I regard this submission as unrealistic. The respondent was pursuing his worker's compensation claim at that stage. It is true he had suffered a motor vehicle accident which was said to have aggravated that injury. However he was not at that time pursuing any claim in respect of the motor vehicle injury against the appellant or AAMI. AAMI's commercial interest was to maintain as best it could the position that the respondent sought total recovery from his worker's compensation insurer. It was not in AAMI's commercial interest to make the respondent alive to the possibility that he may have a claim against it, or the appellant, by requesting that he undergo a medical examination. I see no basis upon which the appellant, or AAMI, should be required to act contrary to their interest. NOTICE OF CONTENTION By a notice of contention, the respondent argued that the trial judge's judgment should be sustained on three bases related to the provision of a full and satisfactory explanation for the delay in commencing proceedings. For the reasons I have given the statutory provisions upon which the respondent relied in the notice of contention were not in force. It thus advances no reasons for sustaining the trial judge's decision. For those reasons the appeal should be upheld and the orders of Phegan ADCJ made 28 February 1997 set aside. The notice of motion dated 28 November 1996 should be dismissed with costs. The respondent should pay the appellant's costs but should have, if qualified, a certificate under the Suitors Fund Act in respect of the costs of the appeal. Beazley JA I agree with Cole JA. Stein JA I agree with Cole JA and the orders he proposes. For those reasons the appeal should be upheld and the orders of Phegan ADCJ made 28 February 1997 set aside. The notice of motion dated 28 November 1996 should be dismissed with costs. The respondent should pay the appellant's costs but should have, if qualified, a certificate under the Suitors Fund Act in respect of the costs of the appeal. Counsel for the Appellant: D F Jackson QC/ A Ashburner Solicitors for the Appellant: Ferguson Holt 12 UNREPORTED JUDGMENTS Counsel for the Respondent: K Ryan Solicitors for the Respondent: Smallwood Cathcart