District Court New South Wales Medium Neutral Citation: Young Lim Jeon v Sul (Jolie) Lyu [2011] NSWDC 145 Hearing dates: 23 August 2011 Decision date: 30 August 2011 Jurisdiction: Civil Before: Judge M Sidis Decision: 1. I grant leave pursuant to s 109(1) of the Motor Accident Compensation Act 1999 to the plaintiff to commence proceedings in respect of the claim. 2. The statement of claim is to be filed and served by 9 September 2011. 3. The defendant is to pay the plaintiff's costs of the application 4. The affidavit materials are returned. Catchwords: LIMITATION: leave to commence proceedings in respect of motor vehicle accident - no claim of prejudice by defendant - explanation for delay accepted as full - whether satisfactory in light of agreement between plaintiff and defendant to misreport the cause of plaintiff's injury - plaintiff and defendant South Korean nationals studying in Australia - defendant feared criminal conviction and deportation - whether explanation that involved participation in deception could be regarded as satisfactory Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Figliuzzi v Yonan (2005) NSW CA 290 Category: Principal judgment Parties: Young Lim Jeon (Plaintiff/Applicant) Sul Lyu (Jolie) (Defendant/Respondent) Representation: Ms. J Borrie (For Plaintiff/Applicant) Mr. S M Barry (For Defendant/Respondent) Thomas Julius Groudkamp (Plaintiff/Applicant) CKB Partners (Defendant/Respondent) File Number(s): 2011/00220079 Judgment 1Young Lim Jeon suffered significant injury to her right foot on 13 July 2007. She claimed that this injury was sustained when her foot was run over the vehicle driven by the defendant Sul Lyu on that date. The plaintiff did not report the accident to police until 8 December 2009. She did not serve a motor accident personal injury claim form until 9 December 2009. The plaintiff's explanation for the delay in serving her claim was provided to the insurer in two parts, in February and March 2010. 2The insurer rejected the explanation on the basis that it was neither full nor satisfactory. The issue of whether the explanation was full and satisfactory was referred for special assessment by the Claims Assessment Resolution Service. A ruling in favour of the plaintiff was published by the CARS Assessor McTegg on 22 September 2010 who found that the plaintiff's explanation was both full and satisfactory. 3I accept that I am not bound by that decision, I have not read it preferring to reach my own conclusions on the issues raised. 4Notwithstanding the request made to the insurer on 5 October 2010 it did not deny liability in respect of the claim until 9 May 2011. The proceedings were subsequently exempted from the CARS process. 5The insurer declined to consent to an order granting leave to commence proceedings out of time and accordingly on 7 July 2011 the plaintiff filed a motion seeking leave to commence proceedings under s 109(1) of the Motor Accidents Compensation Act 1999. S 109(3) of the Act provides that leave must not be granted unless the plaintiff satisfies the court that she has a full and satisfactory explanation for the delay. 6What is full and satisfactory is defined in s 66(2) of the Act, in addition to requiring a full account of the claimant's knowledge, conduct, knowledge and belief it provides 7The explanation is not satisfactory 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. 8In essence, the plaintiff put forward the same explanation and the same material as that provided to the CARS's assessor. The defendant accepted that the explanation was full and did not claim that it would be prejudiced if the plaintiff were granted leave to commence proceedings out of time. The defendant did not dispute that the plaintiff's injuries were likely to qualify her for compensation in excess of the threshold provided for in s 109(3)(b) of the Act. 9The plaintiff's explanation was that at the time of her accident the defendant was affected by alcohol. She claimed that she was injured when she attempted to prevent the defendant from driving in an intoxicated condition. The plaintiff said that immediately after the accident while waiting for the ambulance she, the defendant and the defendant's male companion agreed that the plaintiff would report that her injury occurred when she fell downstairs and that the defendant would meet any medical expenses that she incurred in her treatment and recovery. The plaintiff duly reported a fall as the cause of her injuries. 10By early 2008 she informed her treating surgeon of the true circumstances in which she was injured. Unfortunately her injuries proved to be more serious than appreciated at the time of the accident. The plaintiff's medical expenses were ongoing and significant. 11The defendant became increasingly resistant to her requests for funds to meet those expenses to the point where in December 2009 the plaintiff consulted her current solicitors. The defendant made no complaint concerning the quality of the explanation from this point forward. The defendant's objection to the explanation was that the plaintiff's failure to commence proceedings within the statutory period was the result of a process of deception concerning the cause of her injury. The defendant contended that the court should not accept that a reasonable person in the plaintiff's position would engage in such conduct or would be justified in engaging in such conduct to the point where the delay in commencement of proceedings rendered her claim barred by statute. 12It was necessary therefore to consider the plaintiff's position. At the time of the accident she was twenty-four years old. She arrived in Australia from South Korea in July 2006, intending to study physiotherapy at Newcastle University. Her course was to commence three days after the accident. She studied English in South Korea and attended a six month course in English at intermediate level at Newcastle University upon her arrival in Australia. 13The defendant was also from South Korea. She was also a physiotherapy student. The plaintiff and the defendant met in South Korea one year prior to their arrival in Australia. They formed a friendship and travelled together, attending the same English classes and sharing their social activities. 14On the night of the accident both the plaintiff and the defendant had been drinking. The plaintiff said that the discussion while waiting for the ambulance surrounded the consequences to the defendant if the accident was reported. The defendant feared police involvement that might result in criminal charges and her expulsion from Australia, preventing her from proceeding with her studies. 15The plaintiff claimed that she was also fearful, her English was not good, she did not wish to get anyone into trouble and she was, at the time, in great pain and not clearly thinking. 16At the prompting of the defendant and her male companion she therefore told the ambulance officers and hospital staff that she suffered injury falling down stairs. 17The plaintiff said that whilst in hospital she continued to be in great pain that was relieved by morphine so that she did not think clearly. She remained in hospital for three weeks, during which time she underwent two surgical procedures to fix the several fractures in her right ankle and foot. 18At the hospital the defendant told her that the defendant's parents would provide funds to pay for all her medical expenses. 19The plaintiff said she returned to South Korea in November 2007. It appeared that it was at this time that the plaintiff's failure to claim on the defendant's motor vehicle insurer was raised with her. She said her mother was angry that she had not done so, but did not press her to pursue the motor vehicle insurer when she explained her reasons. The plaintiff and her parents met with the defendant's father in South Korea and he agreed to meet her medical expenses. 20The plaintiff returned to Australia in February 2008. At that time she claimed on a student health insurance policy for her medical expenses, with the defendant meeting any shortfall in the amounts recovered. 21The plaintiff said she met with the defendant and enquired if there was motor vehicle insurance that would cover the cost of her continuing treatment for her foot. She said the defendant told her that her male companion made inquiry of the insurance company and was told that no claim could be made because there was no proof that a motor vehicle accident occurred, the medical records all stating that the plaintiff fell on stairs. 22The plaintiff said she trusted the defendant's male companion. She said her English was poor and he was the only native English speaker amongst her group. 23In about September 2008 the plaintiff contacted a Korean solicitor by telephone. She said he did not fully explain her rights to her. She spoke again to the defendant who repeated that she could not claim on the motor vehicle insurance because of the misreporting of the circumstances in which she was injured. 24The defendant argued that the plaintiff practised deception in two ways. It argued that she falsely claimed substantial medical expenses from her student health insurance policy. A copy of the policy was attached to the affidavit of the defendant's solicitor. Its terms excluded from the benefits payable under the policy services and treatment which are covered by compensation and damages provisions of any kind. 25I was not satisfied that the plaintiff deliberately deceived the company providing cover under this policy. 26She said that in South Korea she read a brochure concerning the cover provided but said nothing of having read the policy itself. Further, the plaintiff appeared to be genuine in her belief, founded on information provided by the defendant and her male companion, that she was not entitled to compensation or damages from the motor vehicle insurer. I therefore did not consider that this aspect of her conduct was morally reprehensible or that it should disqualify her from the relief that she sought. 27The second aspect of the defendant's argument was based upon the misrepresenting of the circumstances of the accident. For this purpose I needed to consider two issues that arose out of the definition of a full and satisfactory explanation as provided in s 66(2) of the Act. The first was whether a reasonable person in the plaintiff's position would have failed to comply with the requirement to commence proceedings within three years or secondly, whether a reasonable person in the plaintiff's position would have been justified in experiencing the delay in the commencement of proceedings. 28After considering carefully the evidence and the defendant's submissions concerning the deception involved in misreporting the circumstances of the injury, I concluded that both questions should be answered in the affirmative. 29The defendant argued that relief should be denied on public policy grounds in the circumstances of the plaintiff's deception. The defendant sought to draw on the principles of Figliuzzi v Yonan (2005) NSW CA 290, I did not find that decision to be of particular instance in the circumstances of this case. 30I did find that the public policy argument bore a somewhat hypocritical element when the defendant herself was the promoter of the deception, was the direct beneficiary of it, through her male companion subsequently misinformed the plaintiff of her rights to claim compensation and ultimately dishonoured the basis upon which the plaintiff, while in shock and pain, agreed to participate. 31Further, I considered that a reasonable person who was a young woman of twenty-four, living at a distance from her native country and family, unfamiliar with the language and the law relating to personal injury compensation in a foreign country, would agree and would be justified in agreeing to protect a close friend who was also in a foreign environment from potential criminal conviction, deportation and exclusion from her field of study. A reasonable person in this position would, in my view, be fortified by the defendant's agreement to meet all medical expenses and would be affected by the shock and pain of the serious injuries suffered. 32The plaintiff's continuing delay in seeking independent legal advice from lawyers specialising in personal injury law was the result of misinformation provided by the defendant. 33Ultimately the period of delay was not excessive. As already noted there was no suggestion of prejudice to the defendant, nor was it suggested that the defendant could not secure a fair trial of the issues. The plaintiff suffered serious injuries to her foot with potential ongoing consequences to her career in physiotherapy. 34Thus having concluded that a reasonable person in the plaintiff's position would have experienced the same delay or would have been justified in experiencing the same delay and noting that there were no other discretionary elements warranting refusing of the relief sought I propose to grant it. 35In ordinary circumstances I would require the plaintiff to pay the costs of her application for leave to commence proceedings. In this case, however, this is the second occasion upon which the question of whether her explanation was full and satisfactory has been determined in her favour and in my view it is for the defendant to meet the costs that she incurred in allowing it to reargue these issues. 36The orders that I make are as follows: 371 . I grant leave pursuant to s 109(1) of the Motor Accident Compensation Act 1999 to the plaintiff to commence proceedings in respect of the claim. 382 . The statement of claim is to be filed and served by 9 September 2011. 393 . The defendant is to pay the plaintiff's costs of the application 404 . The affidavit materials are returned. ********** 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: 29 September 2011