Sam William Baxter v Carissa Elizabeth Mcnab [2012] NSWDC 46

District Court New South Wales

Medium Neutral Citation: Sam William Baxter v Carissa Elizabeth Mcnab [2012] NSWDC 46 Hearing dates: 27 March 2012 Decision date: 28 March 2012 Before: Judge M Sidis Decision: 1.The plaintiff's motion is dismissed. 2.The plaintiff is to pay the defendant's costs of the motion. 3.The affidavit materials are returned. 4. The defendant's motion is dismissed. 5. Each party is to pay their own costs of that motion. Catchwords: Motor Vehicle Accident - plaintiff's application for reinstatement - defendant's application to dismiss proceedings - requirement to explain delay in giving notice of claim - in failing to comply with insurer's notice to commence proceedings - in failing to commence proceedings within three years - manifest inadequacy of explanation for substantial periods of delay. Legislation Cited: Motor Accidents Compensation Act 1999 Category: Procedural and other rulings Parties: Sam William Baxter (Plaintiff) Carissa Elizabeth Mcnab (Defendant) Representation: Mr D Benseon (For the Plaintiff) Mr P Cummings (For the Defendant) Slater & Gordon Lawyers (For the Plaintiff) Moray & Agnew Solicitors (For the Defendant) File Number(s): 2011/408896

Judgment 1The plaintiff in this case was nineteen years old when he was injured in an incident that occurred on 24 November 2007. He is now twentythree years old. He claimed that the defendant was the driver of a vehicle that ran into him and caused his injuries. 2His attempts to bring proceedings in respect to his claim have had a chequered course. The motion currently before the Court seeks orders reinstating his claim pursuant to s 110(5) of the Motor Accidents Compensation Act 1999 and granting him leave to institute proceedings pursuant to section 109 of the Act. 3The defendant responded with a motion seeking dismissal of the proceedings pursuant to s 73(5) of the Act. 4These applications drew attention to the obligation on the plaintiff, if he wished to pursue his claim, to provide a full and satisfactory explanation for his failure to give notice of his claim within six months of the date of the accident, to commence proceedings in response to notices issued by the defendant under s 110 of the Act, and to commence proceedings within three years of the date of the accident as required by s 109. 5The terms of the explanation required in each case are the same and are set out in s 66(2) of the Act, as follows: 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. 6The plaintiff's evidence was that he was advised on 22 May 2008, that is, two days prior to the expiration of six months from the date of his accident, that he should lodge notice of his claim. 7He was provided with the names of a number of solicitors and ultimately instructed Slater and Gordon on 13 June 2008. 8On 17 June 2008, he signed an incomplete claim form. 9On 9 September 2008, the claim form, still incomplete, was served initially on the wrong insurer, and handed on to the correct insurer. 10On 24 September 2008, the insurer requested information to complete the claim form and an explanation for the delay in lodging the form. 11The completed claim form was served on the insurer on 17 December 2008, without explanation for delay. 12On the same date, the plaintiff's solicitor sent him a form of explanation for his signature. This was returned to the plaintiff's solicitor in January 2009. This document has never been provided to the insurer. 13No explanation has ever been supplied, as required by section 73 of the Act, in respect of the delay in giving notice of the claim to the insurer. 14The period of delay, at best, was from 24 November 2007 to 9 September 2008, and at worst, to 17 December 2008. 15On 17 August 2009, the pre-conditions provided for in s 110(1) of the Act having been met, the insurer issued notice requiring the plaintiff to commence proceedings within three months. 16On 17 November 2009, the proceedings not having been commenced, the plaintiff was taken to have withdrawn his claim. 17On 19 May 2010, the plaintiff's solicitors submitted a further claim form, without an explanation for delay, but with a request that the insurer reconsider its position on liability. 18On 21 June 2010, the insurer advised that it maintained its position on liability and issued a second notice under s 110. 19On 25 June 2010, the insurer reminded the plaintiff's solicitor that the claim was deemed withdrawn because proceedings had not been commenced in response to the notice issued on 17 August 2009. 20On 21 September 2010, the plaintiff filed a statement of claim, and a defence was filed on 16 November 2010. 21On 17 November 2010, the defendant filed a motion to strike out the claim because of the failure to provide any form of explanation and the failure to provide particulars sought pursuant to s 85(2) of the Act on 17 March 2009, and because of the deemed withdrawal of the claim under s 110. 22On 26 November 2010, the plaintiff sought an order for reinstatement of the claim in accordance with the provisions of s 110(5). 23On 3 December 2010, the proceedings were dismissed because they were commenced in breach of s 85, the particulars not having been supplied. 24The other issues raised were not dealt with at that time. 25At the time the proceedings were dismissed, the plaintiff was still within time to commence his action, provided the required explanations were given, and he succeeded in his application for reinstatement.. 26A motion for reinstatement was filed on 15 December 2011. 27It might be argued that the substantial materials provided in support of this application, taken together, gave a global explanation that met the requirements of s 66(2) in respect of each of the three statutory obligations. I regret that they did not fulfil that function. 28This material informed me that the plaintiff was unaware of the requirement to give notice of his claim within six months, until two days before that period expired. 29If given within a reasonable time after having been informed of the requirement to lodge notice, this explanation might have been acceptable. However, a fully completed claim form was not provided until 17 December 2008, some seven months later, and it was not accompanied by any form of explanation. 30I have already noted that an explanation was forwarded to the plaintiff in December 2008, and that he signed it and returned it to his solicitor in January 2009. It was never forwarded to the insurer, and its fate has never been disclosed to this Court. 31The defendant denied liability in December 2008 and exemption from the CARS process was granted in February 2009. The defendant therefore sought particulars in March 2009 under s 85 and the plaintiff's solicitor forwarded the request for particulars to the plaintiff, seeking instructions in order to reply. 32Nothing appeared to have been done to supply these particulars at that stage. 33There followed a period of apparent inaction on the part of the plaintiff and his solicitors, during which the defendant, in August 2009, issued the notice under s 110 that was allowed to lapse, leading to the deemed withdrawal of the claim. This period of inaction was entirely unexplained. 34It was not until 19 May 2010 that anything further was done. This was the submission of a second claim with a request that the defendant reconsider its position on liability. 35No application was made to the Court to reinstate the claim. 36The statement of claim was filed in September 2010 in an apparent attempt to forestall the lapsing of the claim in the event that the second notice under s 110 had some effect. 37However, the plaintiff was not in a position to commence proceedings at that stage because the particulars sought under s 85 had not been supplied. As already noted, inevitably the statement of claim was dismissed. 38One might have expected that, immediately following the dismissal of the plaintiff's claim in December 2010, an application to reinstate the claim would be made so that the outstanding particulars could be provided and a statement of claim filed, still within the three year limitation period. 39This application was not made until the current motion was filed twelve months later, in December 2011. By then, the limitation period had expired. 40Again, there was little by way of explanation for this delay. 41The plaintiff's solicitors said that the s 85 particulars were provided in April 2011 but the defendant's solicitor did not receive them. 42In any event, at that stage the claim was deemed to have been withdrawn. 43An attempt to apply for assessment of a permanent impairment dispute was rejected by the Medical Assessment Service for the same reason. 44The plaintiff's solicitor claimed that he spent more than two months preparing affidavits for the purposes of this application but this was not started until August 2011, and again, there was no explanation for this period of delay. 45At best, the plaintiff puts forward the following as reasons for his delay. 46He moved with his mother to three different addresses and mail at times was not delivered. 47He had difficulties in contacting the former solicitor who acted for him at Slater and Gordon and he was unaware of the importance of the requirement to provide an explanation because this was never explained to him. 48Further, he left matters to his solicitor to attend to on his behalf. 49He did not explain why there was no appointment made to deal with the request for particulars. 50The defendant acknowledged that the plaintiff met the threshold requirements of s 109(3)(b), and the plaintiff appeared to have an arguable case on the merits. 51However, each of the provisions requiring explanations quite clearly provide that this Court must not grant the indulgence sought in the absence of a full and satisfactory explanation. 52It simply was not available in this case. 53Such explanation as was provided was not full, in the sense described in s 66. It was far from satisfactory, and aside from the vague assertion that the plaintiff relied on his solicitor, it did not even attempt to deal with the situation of a reasonable person in the position of the plaintiff.