Kelly Sousa v Enfield Veterinary Hospital [2003] NSWCC 9

Compensation Court of New South Wales

CITATION : Kelly Sousa v Enfield Veterinary Hospital [2003] NSWCC 9 Kelly Sousa PARTIES : v James Alexamder Allen, Catherine Maria Brett Trading as Enfield Veterinary Hospital MATTER NUMBER(S) : 6048 of 1997 JUDGMENT OF: Geraghty J at 1 Proceedings to Obtain Compensation :- Re-Consideration CATCHWORDS: without proper justification LEGISLATION CITED: CASES CITED: DATES OF HEARING: 15/04/2003 EX TEMPORE JUDGMENT DATE : 04/15/2003

FOR APPLICANT: MR R TAYLOR instructed by Keddies LEGAL REPRESENTATIVES: FOR RESPONDENT: MR L MORGAN instructed by Vardanega Roberts

JUDGMENT: 1. The matter comes before me on notice of motion, seeking a reconsideration of an award, partly in favour of Kelly Santos Sousa, partly in favour of the respondent. The applicant, Kelly Sousa, seeks a re-consideration of the award, pursuant to s 17(4) of the Compensation Act, to rescind the award in respect of the back and left arm made in favour of the respondent, though no application is made to reconsider the award in respect of any neck impairment. 2. After the filing of affidavits and cross-examination of Kelly Sousa, the applicant instructed her barrister, Mr Taylor, to withdraw her application made in a notice of motion. Counsel for the respondent informed me that he was instructed not to object to this application, but to make a further application that the applicant pay the respondent's costs on the basis that her application was brought frivolously, vexatiously, or without proper justification. 3. On 11 April 1997 Kelly Sousa had filed an application for determination. She had instructed her solicitors, Gells, to seek a s 66 award for neck and back impairments and loss of use of her left arm, together with payment of medical expenses. On 4 June 1997 Michael Joseph Gerard Roberts of Vardanega Roberts filed a notice of appearance and, on the same day, an answer on behalf of MMI Workers Compensation (NSW) Limited. The application was settled and a notice of settlement, signed by the parties (including Kelly Sousa) and dated 23 April 1998, was completed in respect of the neck injury. A sum was agreed upon, and short minutes of order were concluded on 23 April 1998, Martin Claridge of counsel signing them on behalf of Kelly Sousa. 4. The short minutes of order established that an amount in respect of 10 per cent of permanent neck impairment would be paid to Ms Sousa, and an award in favour of the respondent would be entered in respect of her claim for back impairment and loss of use of her left arm. The order in respect of medical expenses was somewhat more complicated but it is set out in the award issued by the Court and dated 2 September 1998. Par 4 and par 5 of the orders and awards refer to the payment of s 60 expenses. 5. By notice dated 1 May 2002, Keddies, solicitors, filed a notice of change of solicitors and on 16 May 2002, on behalf of Kelly Sousa, Keddies filed a first proposed amended application for determination, pleading a motor vehicle accident injury sustained on 4 June 1991 (the same accident as referred to in the initial application for determination filed in April 1997 which had been settled between the parties). 6. The first proposed amended application from May 2002 sought an award for permanent neck impairment, as well as for a back impairment and left arm loss, and a general order pursuant to s 60 for payment of medical expenses. The applicant had changed her solicitors. A notice of motion was filed also on 1 May 2002 (when the change of solicitors notice was filed) seeking a reconsideration of the award made in September 1998, but only in respect of the back and left arm, this amendment being made on the first day of hearing which was September 2002. 7. The notice of motion was supported by an affidavit of Kelly Sousa sworn on 22 April 2002. In her affidavit, Sousa asserted that when the matter was settled, her only concern had been that she leave open her rights to claim further compensation, especially in relation to the medical expenses (par 5). She stated on oath that she was not aware that an award for the respondent had been entered in respect to her claim for back impairment and left arm loss. She said she was not aware that the award for the respondent in relation to these two body parts meant that she could not claim further lump sum compensation in respect of them. 8. She said that she had continued to experience difficulties after settlement, particularly difficulties when she sought payment of her medical expenses from the insurance company, though when these difficulties began was not disclosed. Whether they began soon after the award was entered into, or years after, I do not know. Kelly Sousa said on oath, at par 7 of her affidavit, that she consulted Keddies solicitors, though she does not state why it was that she changed her solicitors from Gells where, it would appear, she had sought assistance on referral from a family friend who knew the solicitor who acted for her, Maria Townsend. 9. In par 8 of her affidavit, Sousa stated: It was not until I consulted Keddies, solicitors, that it was brought to my attention that I could not make further claims in relation to my back and left arm. My condition had worsened since 23 April 1998 and Keddies advised that I could make a claim for increased impairment. 10. In par 9, she boldly stated that when her previous matter had been settled, she had not been told that she would not be able to make further claims for compensation in relation to the back and left arm. She did not say that she does not remember being told, she simply stated, quite boldlyk, that she was not told. 11. The matter came before me on 23 September 2002 when Ms Sousa was cross-examined on her affidavit. She said, among other things, that she was not aware that the money she received was just for her neck: Q - It was never explained to you that the money that you were being offered was for your neck only; is that your evidence. A - Not that I am aware of. (tr. p.6) 12. She said that as far as she was aware, it was being left open to her to be able to claim for her arm, her back and her neck in the future. I asked her whether she was present on the day at Court when her claim was settled. She said she had been. I asked did she remember the day. She said she did. I asked her was her solicitor present. She said that her solicitor had been present and that her name was 'Maria Townsend'. I asked was her barrister present, and she said that he had been. I asked did she speak with them and she said she had. 13. Mr Morgan asked whether, when she had spoken to her barrister and solicitor, she had discussed with them at all what she was receiving some money for. She agreed that she did speak about this but she could not remember the details. Mr Morgan asked whether it was possible that they had discussed with her that she was only receiving money in respect of her neck, and she replied that that might have been so: Q - They may have also discussed with you that you were not receiving any money in respect of your back or your left arm because you were giving up those claims. A - No. Q - That is not possible. A - I was not giving up those claims as far as I was aware. Q - So your memory was clear, was it. A - It was in respect to that, yes. (tr. p.6) 14. Mr Morgan, later in his cross-examination, asked Sousa whether she had had any contact with Gells and she said she had not: Q - Do you agree with me that the allegation you are making towards Gells is that they acted without your authority on the previous occasion. A - They did act without my authority, yes. Q - That they did not advise you at all about what you were doing in terms of settling your case, that is the allegation you are making against them. A - That's right. I did not agree to those terms. Q - Have you made any complaint elsewhere about your dealings with your former solicitor? A - No, I have not. (tr. p.7) 15. Sousa was re-called, warned again and further cross-examined. A document was shown to her. It is now Exhibit 1/1 and is entitled Notice of Settlement. She identified her signature, though she said that she did not recognise the document: Q - Can I ask you to look at the first page of the document ... at the bottom right-hand column of the first page. A - Bottom right? Q - Does the word "neck" appear there in that bottom left. A - Yes, it does - on the bottom left. Q - Do you agree with me that you signed that document A - Yes. Q - Do you agree with me that there is no mention of injury to any other part of your body other than your neck. A - That's right. 16. Mr Taylor, in re-examination, asked did his client remember signing the document. She did not. He asked whether she remembered the document being explained to her. She said she did not remember the document at all. He asked whether she remembered reading the document before she signed it. She answered, No. (tr. p. 12) 17. Then the matter was stood over so that affidavits could be filed by both Maria Townsend, the applicant's former solicitor, and by Martin Claridge of counsel, the barrister who acted for her in April 1998. Those affidavits are on file and have been read. Ms Townsend, for example, said that she had a clear recollection of Kelly Sousa because she was referred to me by a family friend and I had numerous telephone conversations throughout the conduct of the matter. (par 6) 18. Ms Townsend referred to the fact that Mr Claridge of counsel had been briefed in September 1996, that he had had a conference with Ms Sousa and herself on 23 May 1997, and that the conference on the day of the hearing had commenced at the Compensation Court at 9 am on 23 April 1998. It is clear from Ms Townsend's affidavit that her client was concerned about future treatment and who would pay for it, and that this matter was negotiated and explained to her. She recorded her memory of Mr Claridge's advice to his client in par 15. She recorded that he read out the short minutes and what he was writing on the document. She said that he had asked her whether what was recorded on the document sounded alright to her and Ms Townsend said that it did sound alright to her and that the client had replied in words to the effect yes, alright. 19. Martin Claridge of counsel also gives details of the conference on 23 April 1998 in his affidavit sworn on 9 December 2002. He said, in par 17 for example, that he had told Ms Sousa that according to the terms of the settlement, if the terms were accepted by her, it would leave open to her any rights to future weekly payments and for future medical expenses in respect of the neck. That matter is further clarified in par 24. Mr Claridge also swore in his affidavit that it was his practice, in all cases without exception, to explain the short minutes and terms of settlement to the worker, before signing them. He observed that he had appeared as counsel for workers in literally thousands of matters in the Compensation Court since his admission in 1984, and he had never once failed to explain the settlement documents to the worker. He said, in par 29, that on that day of April 1998 he had followed his normal practice. He sat in the conference room with the applicant and Ms Townsend, with both the short minutes and the HIH notice of settlement form. He did not recall, he said, which he completed first, although commonly the short minutes would be done first. 20. Par 32 sets out in extensive detail what his memory was of the conference on 23 April 1998. He had said, inter alia, that the terms of settlement meant that you (Sousa) would get nothing for the back and nothing for the left arm, and that in the future she would be able to make a claim for further lump sums if she got significantly worse. He had said also that it would not be enough that she got worse. She would only be able to claim for a new impairment, which did not exist on the day of 23 April 1998, but which arose in the future as a result of her condition getting significantly worse. 21. Given that the applicant had a genuine belief that she was never told of the terms of settlement, that the details and implications were never explained, was this sufficient reason in the circumstances to initiate this present claim? The question before me is: was she properly justified in the circumstances to rely on her memory of events, to do nothing more to confirm or test her memory, given that terms had been filed, money had been paid and awards entered in favour of the respondent? In order to be properly justified in commencing these proceedings, what could she and her solicitors have done other than what they did do? What more should they have done? Is it enough for her to state bluntly that the settlement was never explained to her, which I interpret as meaning in the circumstances: she does not remember it having ever been explained to her. She does not say, for example, that had it been explained, she did not understand; she simple states she does not remember the explanation being given. 22. This is not just a routine claim based on an injury at work and some medical evidence. The applicant sought to impugn the validity of the agreement on which the earlier awards were based. She sought to challenge the professional standards of her counsel and of her solicitor, to overturn an award of the Court which has stood for years and of which she had already enjoyed a financial benefit. It is her prerogative to do these things. The law, in certain circumstances, allows for such a challenge, but the process is not simple, and to prosecute such a claim entails a good deal of work for the respondent. Conferences, searches, statements from witnesses, affidavits, mentions and, of course, a hearing. 23. The applicant would have been able to identify her earlier solicitor and counsel from the previous file. In any event, it had been a friend who had referred her to a solicitor at Gells. The solicitor was in fact a friend of a friend. Perhaps once the signed short minutes were examined and the award perused, a telephone call, a letter of enquiry, a conference with counsel to establish the circumstances surrounding the conclusion of the agreement and the signing of the terms. Solicitors know how these activities are concluded. They are party to framing and completion of the terms of settlement every day, often several times a day. Of course mistakes can be made. Perhaps explanations are given hurriedly, in shorthand, without the time or circumstances required to fully comprehend them. The applicant does not make any such a claim. She stated that they were never explained to her. I interpret this as meaning she does not remember anything being explained to her. She does not remember not being able to understand them; she only remembers that they were not explained to her. No criticism is made by the applicant of the circumstances surrounding the agreement. She simply stated that no explanation was provided and that she did not understand the import of the terms of the agreement, especially the permanency of the award of the respondent. 24. To begin the process solely on the blunt assertions of the applicant, without further enquiry to test her memory of events, is to begin with some justification - but, in my estimation, not proper justification. In the circumstances, to begin such a claim, the applicant and her solicitor needed to do more, and more could have been done. More could have been done, for example, to establish the state of mind of the applicant at the time; or to detail the circumstances surrounding one agreement; or to confirm the understanding of the applicant by evidence of contemporaneous conversations with family or friends; or to confer with earlier counsel or with her former solicitors; or to explain why it was that she changed from one solicitor's firm to another. None of these were done. It seems to me that, whatever about whether this application was made frivolously or vexatiously, it was made without proper justification. 25. I therefore order the applicant to pay the respondent's costs. MR R TAYLOR instructed by Keddies appeared for the applicant MR L MORGAN instructed by Vardanega Roberts appeared for the respondent