District Court New South Wales Medium Neutral Citation: Conner v Chong [2012] NSWDC 74 Hearing dates: 23 and 24 May 2012 Decision date: 24 May 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 47 Catchwords: Full and satisfactory explanation for delay after motor vehicle accident Legislation Cited: Motor Accident Compensation Act 1999 Cases Cited: Walker v Howard [2009] NSWCA 408 Figliuzzi v Yonan [2005] NSWCA 290 Tan v Basaga [2010] NSWSC 1143 Category: Interlocutory applications Parties: Ronald Conner (Plaintiff) Ching Khim Chong (First Defendant) Nominal Defendant (Second Defendant) Representation: J Turnbull (Plaintiff) J Catsanos (First Defendant) C Allan (Second Defendant) Carroll & O'Dea (Plaintiff) Moray & Agnew (First Defendant) Gillis Delaney Lawyers (Second Defendant) File Number(s): 2011/00411568 Publication restriction: No Judgment 1On 19 September 2008 the plaintiff was injured in a motor vehicle accident. The plaintiff is not sure whether the accident was the fault of an identified vehicle or of an unidentified vehicle. For this reason he has commenced proceedings against a named defendant (the first defendant) and against the Nominal Defendant (the second defendant). 2The proceedings were commenced by the filing of a Statement of Claim on 22 December 2011. 3The filing of the proceedings has generated three Notices of Motion, one by each of the respective parties. All of the Notices of Motion are concerned with time limits in the process dictated by the Motor Accident Compensation Act 1999 (the "MACA"). 4Ultimately the parties reduced the matters to be decided under their Notices of Motion to the following: (a)In respect of the first defendant: (i)Whether the plaintiff had provided a full and satisfactory explanation for the late filing of a claim form as required by Section 73 of the MACA. (ii)The periods in respect of which the first defendant took issue were from the motor vehicle accident until 4 November 2009 (when the plaintiff received some advice from a Mr Peter Cox) and secondly from receiving this advice until consulting a solicitor on 6 May 2010. (b)In respect of the second defendant: (i)Whether the plaintiff had provided a full and satisfactory explanation for the late filing of the Statement of Claim under Section 109 of the MACA. (ii)Whether the plaintiff had provided a full and satisfactory explanation for the late filing of the claim form against the second defendant. (iii)The same periods were the subject of argument as with the first defendant. 5Leave under Section 109 not only requires a full and satisfactory explanation for the delay but also the passing of the damages threshold dictated by Section 109(3)(b). Having regard to the assessment of the plaintiff's medical condition (Exhibit A) the second defendant made no submissions on this point. I am satisfied that the threshold has been met. The extent of the plaintiff's injury as set out in Exhibit A as well as evidence about his economic loss establish, certainly at the level at which I am required to examine the matter, that the threshold would be well exceeded. 6In addition to Sections 73 and 109, Section 66(2) is also important. It states: "In this chapter a reference to a full and satisfactory explanation by a claimant for non-compliance with the 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." 7In interpreting Section 66(2), the parties have referred me to the decision of the NSW Court of Appeal in Walker v Howard [2009] NSWCA 408. 8In addition, I have been referred to Figliuzzi v Yonan [2005] NSWCA 290 and to the useful summary of principles given by McCallum J in Tan v Basaga [2010] NSWSC 1143 from paragraph 24. 9I think Walker's case makes it clear (in particular at paragraph 96) that it is necessary to examine whether the whole of the explanation is one which "the reasonable person in the position of the claimant would or would not have been justified in experiencing". 10Turning to this case, I must ask myself whether the reasonable person in the plaintiff's position would have been justified in taking no action or allowing matters to proceed without intervention on his part. 11The plaintiff relied on his own affidavit sworn on 5 April 2012 and that of his solicitor, Mr David Tarrant, also sworn on 5 April 2012. 12The first defendant relied on the affidavit of Mr Scott Graham sworn on 14 May 2012. This affidavit was accompanied by some 1100 pages of material of which about 10 seemed to be relevant. The much diminished relevance of the material was apparently the result of a realisation that the Statement of Claim, as against the first defendant, had been filed within the three year limitation period. 13The second defendant relied on the affidavit of Ms Renee Sadler sworn on 24 April 2012. 14Mr Tarrant and the plaintiff were cross-examined on their affidavits. 15By way of brief background, the plaintiff was born in Alaska in 1953. He came to Australia in 1987. At the date of the accident he was employed by Wormald Technology (Marine) as a project manager dealing in fire control systems on Navy vessels. 16He had a number of pre-existing conditions, which included back pain from a motor vehicle accident in September 2005. 17Following the accident the plaintiff worked until November 2008. Since then he has received workers compensation benefits. It is very significant that he did not consult solicitors in the pursuit and maintenance of his workers compensation benefits. This is not a case where the plaintiff has made an election between common law and workers compensation payments. 18I am satisfied that he was not aware of the possible availability of damages arising from the accident involving an unidentified (and therefore uninsured) vehicle. I think this understanding on his part is consistent with the social work note in the hospital progress notes to be found at page 173 of the exhibit to Mr Graham's affidavit. 19For convenience I will deal firstly with the second defendant's Section 109 point, namely that there had not been a full and satisfactory explanation for the late filing of the Statement of Claim. The proceedings were late by five days. Mr Tarrant, in his oral evidence, said that this was because of a miscalculation on his part that had arisen from the certificates of exemption for the respective defendants being granted on different dates. There was no challenge taken to this evidence. 20The point made by learned counsel for the second defendant was that the explanation was not satisfactory because the plaintiff should have reminded his solicitor, perhaps even kept a check on his activities, to ensure that the three year period was complied with. In my view the plaintiff reasonably left matters in the hands of his solicitors and for reasons upon which I will expand upon below, his condition was such that it was reasonable for him to not exercise a watching brief over his solicitor. 21In relation to the two periods of concern that I have set out above both defendants concentrated on the period between 4 November 2009 and 4 May 2010. 22I note here that no element of prejudice was introduced into the debate. There was also no challenge to the plaintiff's assertion of his disability nor to the manner in which he presented in the witness box. The latter point is significant because the plaintiff's presentation was quite dramatic. 23The plaintiff relies on Canadian crutches to walk. He was bent over both in the witness box and when sitting in court. His facial expression and frequent moaning indicated severe pain. It may be that part of this presentation was dictated by non-physical factors. Even if so, there was no suggestion, nor did I see any basis for such a suggestion, that the plaintiff was malingering, exaggerating or otherwise presenting in a non-genuine manner. 24The defendants concentrated on three elements of inconsistency arising from his oral and affidavit evidence. These were: (a)After receipt of the email from Mr Cox on 4 November 2009 there is a clear conflict between the apparent reply on 5 November 2009 and other material indicating that there was no response until March 2010. (b)The inconsistency between the plaintiff's assertion in paragraph 20 of his affidavit that he had not been injured in any previous motor vehicle accident and the entries in the Mona Vale Hospital notes and his general practitioner's records to the effect that he had injured his lower back in a motor vehicle accident in September 2005. (c)The inconsistency between the plaintiff's assertion that his pain and reliance on alcohol and medication had removed his capacity to take effective action compared with various actions he had taken in relation to a DUI charge and also making contact with the police in respect of the accident which is the subject of these proceedings. 25I will deal with each of the above matters in turn although there is a considerable overlapping of relevant factors. The email issue is certainly confusing. Adopting the page numbers on the plaintiff's affidavit, Mr Cox's original email, of 4 November 2009, can be seen at the bottom of page 39. On the same page is the reply dated 5 November. In the plaintiff's second Statutory Declaration (page 22) at paragraph 5, concerning Mr Cox's affidavit he says: "I finally saw the email on 29 March 2010. I was in a great deal of pain and I was seeking treatment so I didn't have a chance to see his email or respond before that date." There is thus a direct contradiction between the plaintiff's assertion and the email of 5 November. 26However, when one looks at page 25, the 4 November email is again reproduced (although in a different font) and the next email is dated 29 March 2010 consistent with the second Statutory Declaration. It is also noteworthy, and I think important, that the email of 29 March 2010 appears to be a reply to the email of 4 November 2009. 27The defendants submitted that I should regard the inconsistency as a credit issue. The first defendant, in cross-examination, went so far as to suggest the plaintiff was misleading the court. The second declaration is ostensibly misleading but I do not accept that it is a product of any intentional action on the plaintiff's part. What is obvious to me, and it is reinforced by the contents of both the 29 March and 5 November emails from the plaintiff is his complaint about his pain and suffering. The conclusion I have reached, and it is a matter that permeates the whole of the plaintiff's periods of inactivity is that he was effectively incapable of continued, reasoned thinking. This is not to say that there were not times when he could act appropriately but his everyday life was simply dictated by his pain and his efforts to combat it. The use of drugs and alcohol would almost certainly have impeded his capacity. 28As early as 5 February 2009 the plaintiff described his position in a letter he wrote to his employer as follows: "The only reason I have not been in contact is because I have been so messed up in the head from all the medication, back pain and have no PC or telephone. I have been too messed up in the head and body to do much of anything." (page 582, Exhibit to Mr Graham's affidavit). 29In Dr Ryan's report (Exhibit A) he gives a history which highlights my view: "He continued to try to work despite increasing pain. Mr Conner relied on medications and alcohol to help ease his symptoms. On or about the 11 or 12 November 2008 he took a whole box of Panadeine, given to him by a neighbour, which resulted in acute admission to Mona Vale Hospital and subsequent transfer to the Royal North Shore Hospital. When admitted to Royal North Shore Hospital on the 20 January 2008 it was concluded that Mr Conner was alcohol dependent, consuming a bottle of spirits or more a day as well as Valium 10mg four times a day. He was seen by a Neurologist who identified features of Wernicke's encephalopathy with horizontal nystagmus, mental confusion and an inability to stand and walk." 30A little later in his report Dr Ryan notes the following: "He was seen by Dr Wrigley of the Department of Pain Management who advised that he undergo an ADAPT program. Ultimately the ADAPT program was considered inappropriate for Mr Conner because of the presence of depression and high opiate usage." 31I think the most reasonable explanation for the plaintiff apparently forgetting the email of 5 November is that he was so overcome by his injury that his powers of recollection were affected. I suspect that the email on 29 March 2010 was probably written by the plaintiff in the genuine belief that he had not already responded on 5 November 2009. 32It is, however, clear that he wrote the 5 November email so that the period in which he has failed to act must be taken as commencing on 5 November rather than 29 March of the following year. 33The whole of the email trail set out in the plaintiff's affidavit is confusing. The dates seem sometimes out of chronological order and at other times emails seem to be missing. I am satisfied that the plaintiff has not deliberately omitted any material but rather that his management of his emails, perhaps even his collection of them for purposes of his case, has been so overwhelmed by his pain and alcohol and opiate consumption that unreliability has been a natural product. 34In relation to the motor vehicle accident in September 2005 the material relied upon by the defendants does not suggest an injury of any significance. 35I first of all note that Dr Ryan was aware of the injury (page 3 of his report) but he did not consider it of relevance. The first mention of the injury seems to be in a clinical note of Dr Charles Ross-Smith on 16 September 2005. The plaintiff presented with a severe upper respiratory tract infection and at the same time gave a history of "MVA one week ago, injury to lower back which is still v painful over lower lumber area". 36Dr Ross-Smith sent the plaintiff, on the same day, to the Mona Vale Hospital Emergency Department with a letter that can be found at page 481 of the exhibit to Mr Graham's affidavit. I think it is clear from this letter that the main purpose of the referral concerns the chest infection. There is another history of the accident at page 495 but this seems to be the last reference to the injury. There is nothing to suggest any ongoing complaint nor any visits to the doctor for ongoing medical care. It is to be noted that the plaintiff was a person who frequently visited the medical profession. 37Having regard to the limited effects of the accident in 2005, set against the background of the plaintiff's pain and suffering since 2009, I do not regard the plaintiff's omission of the earlier accident in paragraph 20 of his affidavit as significant. To the contrary, I think the omission is entirely consistent with the overwhelming effects upon him of the later accident. 38Turning to the plaintiff's apparent capacity to deal with matters over the years such as instructing solicitors on his DUI charge, I think the plaintiff's evidence is a useful guide. He was able to come to court, to give evidence and apparently do so reasonably sensibly. However, I have already remarked on the manner in which he gave evidence, his apparent pain and his inability to deal with details (such as emails and the 2005 accident) with any clear recollection or specificity. The fact that a person is able to deal with matters that arise does not say of that person that he is able to manage legal affairs let alone follow the paths of process set by the MACA. 39In relation to the DUI it was submitted that, acting reasonably, the plaintiff would have asked the solicitor he engaged for those proceedings to advise him about the earlier motor accident. I disagree. The plaintiff was dealing with a specific charge not arising from the subject accident and not concerned with any compensation from the accident. 40Although the defendants concentrated on the second of the two periods I have set out above, I think the plaintiff has given a full and satisfactory explanation in respect of both periods and that the explanation is derived from his condition, which overwhelmed his capacity to pursue his claim. 41Having been told, perhaps even warned, by Mr Cox on 4 November 2009 of the need to act promptly, the plaintiff's inability to do so was still dominated by his condition. As I have already said, following Walker's case, I need to examine the actions of a reasonable person in the position of the plaintiff. In my view a reasonable person in this position would not necessarily have acted in any different manner to that of the plaintiff. 42The defendant submitted that their position was strengthened after March 2010 because Mr Cox had become emphatic and assertive in his advice yet the plaintiff still took no action until June of the same year. In my view, far from supporting the defendants' case, this fact highlights the effect of the plaintiff's condition. Ignorance of such direct advice indicates to me the extent to which the plaintiff was overborne by the combined effects of his pain, his medication and his alcohol consumption. 43The defendants submitted that a notable missing element in the provision of a full and satisfactory explanation was the absence of an affidavit from Mr Cox, especially in the light of the apparently unreliable email history set out in the plaintiff's affidavit. It may be that Mr Cox could have provided useful information; however, I do not regard the absence of his evidence as affecting the plaintiff's case. I think my view is summed up in the following passage from Walker: "104. Whilst the affidavits were, to a degree, exiguous, I am of the view that they were complete in the relevant sense as saying what happened and why. The provision does not call for perfection, or, as Foster AJA said in Diaz at 183 [122], for prolix or burdensome recounting of every moment that has elapsed. The section does require the explanation for the delay from the date of the accident." 44I am also satisfied, in relation to the overall explanation, that although there are some inconsistencies, particularly in relation to the emails, that the explanation has covered the whole period required. 45In case of doubt, my finding of a full and satisfactory explanation extends both to the late making of a claim (under Section 73) and to the late filing (under Section 109) of the Statement of Claim. The latter finding is only relevant to the second defendant. The result is that the defendants' Notices of Motion should be dismissed. 46The plaintiff's Notice of Motion filed on 5 April 2012 should succeed. 47I make the following orders: (a)Leave to the plaintiff to continue the proceedings commenced on 22 December 2011. (b)The first defendant's Notice of Motion filed on 21 February 2012 is dismissed. (c)The second defendant's Notice of Motion filed on 22 February 2012 is dismissed. 48I will hear the parties on costs. ********** Amendments 28 May 2012 - Amended paragraphs: 24(b) and 34 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: 28 May 2012