New South Wales District Court CITATION: Evans v Allianz [2006] NSWDC 117 HEARING DATE(S): 28 September 2006 EX TEMPORE JUDGMENT DATE : 09/28/2006 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. Application is dismissed; 2. The applicant is to pay the respondent's costs of the motion; 3. Exhibit A is returned with the affidavit material CATCHWORDS: Full & satisfactory explanation LEGISLATION CITED: Motor Accidents Compensation Act 1988 ss 109 & 110 PARTIES: Ian Douglas Evans Allianz Australia Insurance Ltd FILE NUMBER(S): 3388/06 COUNSEL: Solicitor Ms S Hill Counsel P N Khandhar SOLICITORS: Watson McNamara & Watt Dibbs Abbott Stillman Lawyers JUDGMENT 3388/06 - IAN DOUGLAS EVANS v ALLIANZ AUSTRALIA INSURANCE LIMITED HER HONOUR: 1 In this matter the plaintiff Mr Ian Evans was injured in a motor vehicle accident that occurred on 22 December 2000. The limitation period in respect to his claim expired on 22 December 2003. Proceedings in respect of his claim were not commenced by that date. 2 On 11 July 2005 the defendant's insurer Allianz served on the plaintiff's solicitor notice under s 100 of the Motor Accidents Compensation Act 1988 requiring that he commence proceedings within three months of receipt of the notice, that is on or about 11 October 2005. Proceedings in respect of his claim were not commenced by that date. Mr Evans therefore requires the Court to exercise its discretion in allowing him to proceed in respect of his claim under both ss 109 and 110 of the Act. 3 To secure that leave it will be necessary for him to establish the following. 1. A full and satisfactory explanation for the delay in the commencement of proceedings as required by s 109(3)(a) of the Act. 2. That the total damages which he is likely to recover would be not less than twenty five per cent of the maximum sum allowed under the Act as required by s 109(3)(b). 3. A full and satisfactory explanation for the failure to comply with the section 110 notice as required by s 110(5) of the Act. 4. That the defendant would be able to secure a fair trial of the issues arising out of his claim. The defendant does not argue this proposition and it is therefore not further addressed in these reasons. 5. As a matter of general discretion, that an extension of time and reinstatement of his claim would be fair and reasonable. Issues 1 and 3 – the explanation 4 Mr Evans stated that he initially retained Mr Tumeth of Weaver Gentle and Harrison solicitors. He was informed apparently towards the end of March 2003 that Mr Tumeth could no longer act for him. Watson McNamara Solicitors were engaged in March 2003. Ms Etoline Galbraith became responsible for Mr Evan's file. She was supervised by Mr Roderick Watt of Watson McNamara. Ms Galbraith initially was in charge of the file from March 2003 until 24 December 2003 when she took maternity leave for a period of twelve months and she resumed carriage of the matter in January 2005. In the initial period of Ms Galbraith's responsibility for the file, a medical assessment was undertaken and a certificate issued on 30 August 2003, indicating a whole person impairment of less than ten per cent, but stating that Mr Evan's right ankle injury had not stabilised. 5 Mr Watts took over the file during Ms Galbraith's period of maternity leave. In May 2004 he applied for an exemption from the Claims Assessment and Resolution Service on the grounds that Mr Evan's injuries had not stabilised. The exemption was granted on 22 June 2004. Further medical assessments placed Mr Evans at not greater than ten per cent whole person impairment. 6 On returning to practice Ms Galbraith sought to review the medical assessment in April 2005. Delays were encountered with the Medical Assessment Service, but the application for review was ultimately rejected on 26 July 2005. The s 110 notice was served on or about 11 July 2005. Negotiations in respect of the claim proceeded between the parties between April 2005 and December 2005. On 7 December 2005, Ms Galbraith lodged an application to CARS for general assessment. Having received no reply she contacted CARS and was informed in about May 2006 that a certificate of exemption that had been issued when Mr Watt was in charge of the file. She said she located the certificate when she subsequently reviewed the file. 7 The explanation put forward, therefore, was that Ms Galbraith was unaware until May 2006 that Mr Evans had been exempted from the CARS process. It was argued that s 91(2)(c) removes any time limit on referral of claims to CARS when an injury has not stabilised within three years of a motor vehicle accident. Accepting that this proposition was correct, the fact is that Mr Evans claim had been removed from the CARS process and that removal had taken place after the limitation period for commencement of proceedings in this Court had expired. It thus became necessary to provide full and satisfactory explanations for the various delays. 8 There were significant problems in the materials before the Court. Mr Evans gave no reason why he ceased to retain Mr Tumeth. There was no affidavit from Mr Tumeth and there was no explanation of what Mr Tumeth had done on his behalf between the date of the accident in December 2000 and the change of retainer in March 2003. Mr Evans stated nothing about the extent of his reliance upon his solicitors to attend to his claim. Between March 2003 and December 2003 there was no evidence that anything was done by Watson McNamara except to obtain the assessment from the Medical Assessment Service. 9 Ms Galbraith's affidavit did not address at all the expiration of the limitation period in December 2003. When Mr Watt was in charge of the file between December 2003 up to May 2004, there was no evidence of what he did to progress Mr Evan's claim or to deal with the expiration of the time limit. 10 According to Mr Watt's affidavit he applied for a certificate on 28 May 2004 on the basis that the condition of Mr Evan's ankle had not stabilised. There was no explanation for why he did so, when on 20 and 25 May 2004, according to correspondence attached to his affidavit he wrote to the Medical Assessment Service and to Allianz, the defendant's insurer, asserting that the condition of Mr Evan's ankle had by that date in fact stabilised. 11 After Ms Galbraith returned to the matter in January 2005 there was no evidence that she did anything to address the limitation problem. There was no evidence of the supervision that was provided to her by Mr Watt, although he stated in his affidavit that she worked under his supervision. There was no explanation for why the file was not reviewed at that time. There was no evidence that Ms Galbraith paid any attention to the s 110 notice, not withstanding that it enclosed a copy of the certificate of exemption. Issue 2 – 25% damages threshold 12 On the basis of the medical evidence attached to Ms Galbraith's affidavit, I am satisfied that Mr Evan's claim most likely have a value which will exceed twenty five per cent of a maximum sum. Issue 4 – fair trial 13 I have already noted that there is no claim for prejudice. Issue 5 – general discretion 14 The issue is whether Mr Evans should be put out of court on the basis of apparent errors on the part of his solicitors. There is a well established principle to which my attention has been drawn that the party directly responsible for damage should be required to meet the claim, not withstanding the errors of the legal representatives of a claimant. However, the deficiencies in the information provided in support of Mr Evan's application are so great that I could not be satisfied that there has been a full and satisfactory explanation. I have already referred to the deficiencies including those which do not address the reasons why the proceedings were not commenced prior to 22 December 2003. 15 It has not been claimed that Ms Galbraith or Mr Watt misunderstood the processes of assessment provided for under the Act. It was not claimed that the certificate of exemption had any effect upon the limitation period, nor could it have done so, since it was issued after the expiration of the limitation period. 16 There was no explanation for the failure to be alerted to the certificate of exemption until May 2006, particularly in the light of the s 110 notice. No reason was provided for ignoring this notice. On this basis I am not able to be satisfied that this all occurred because of the incompetence of the solicitors and without the knowledge of Mr Evans. 17 In the circumstances the application is dismissed. HER HONOUR: Do you have anything to say anything about costs Ms Hill? HILL: I don't think there is much that I can say your Honour. HER HONOUR: No, Thank you. 18 The applicant is to pay the respondent's costs of the motion. 19 Exhibit A is returned. KANDAHAR: As your Honour pleases. HER HONOUR: Along with the affidavit material. Thank you. ********** 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.