District Court New South Wales Medium Neutral Citation: Gudelj v Tihic [2012] NSWDC 87 Hearing dates: 07/06/2012 Decision date: 18 June 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed; 2.The defendant is to pay the plaintiff's costs of the dismissed motion; 3.Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011; 4.Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings; 5.Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LIMITATION OF ACTIONS - consideration of s 73 and s 109(3) of Motor Accidents Compensation Act 1999 - insurer's application for dismissal of plaintiff's claim - whether plaintiff has provided full and satisfactory explanation for delay - whether relevant prejudice arises Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 81, s 91, s 92, s 94, s 96, s 108, s 109 Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Limited [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 29 Gudelj v MAA [2009] NSWSC 436 Gudelj v MAA [2011] NSWCA 158 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735 Taylor v Chown [2010] NSWDC 63 Walker v Howard [2009] NSWCA 408 Category: Procedural and other rulings Parties: Darko Gudelj (Plaintiff/respondent) Vanessa Tihic (Defendant/applicant) Representation: Mr E Romaniuk (Plaintiff/respondent) Mr D Ronzani (Defendant/applicant) Slater & Gordon (Plaintiff/respondent) Curwoods (Defendant/applicant) File Number(s): 2011/310378 Publication restriction: None Judgment Table of Contents Notices of motion (2) [1] - [4] Facts [5] - [44] Procedural history [45] - [64] Legislation [65] - [67] Issues [68] - [70] Array of evidence [71] - [73] Relevant periods of delay [74] - [75] Explanation proffered by plaintiff [76] - [84] Whether the explanation is full and satisfactory [85] - [112] Whether prejudice relevantly arises [113] - [116] Disposition [117] Costs [118] - [123] Orders [124] Notices of motion (2) 1These are two contested procedural notices of motion calling for decision. Each involves issues arising from a late claim for damages made by the plaintiff, Mr Darko Gudelj, against the defendant, his wife, Ms Vanessa Tihic, in respect of injuries the plaintiff received in a motor vehicle accident that occurred on 21 May 2006. The motions concern procedural and time limitation issues arising under the scheme of the Motor Accidents Act 1999 ["MAC Act"]. 2The first motion was filed by the CTP insurer, NRMA, on behalf of the defendant on 20 October 2011, by which orders are sought pursuant to s 72 and s 109 of the MAC Act for the plaintiff's proceedings to be dismissed as a consequence of non-compliance by the plaintiff with prescribed statutory time limits for the making of his claim. 3The second motion was filed by the plaintiff in court by leave and without objection, and sought an order nunc pro tunc pursuant to s 109(1) of the MAC Act, to regularise the proceedings already commenced by the plaintiff on 27 September 2011 without prior leave. The second motion also sought an order declaring, pursuant to s 73 of the MAC Act, that the plaintiff had provided a full and satisfactory explanation for the delay in making his claim. 4In view of the extent of the delay incurred by the plaintiff in the bringing of his proceedings it is necessary to set out and consider the factual circumstances in order to determine whether the discretion conferred by these statutory provisions should be invoked in the plaintiff's favour as claimed. Facts 5The plaintiff is presently aged 36 years. He completed his trade qualifications as an automotive spray painter at age 22 years. On 21 May 2006, when the plaintiff was aged 30 years, he was involved in a motor vehicle accident in circumstances where he was a passenger in a vehicle driven by his wife, the defendant. 6The circumstances of the accident were that the plaintiff's vehicle had been parked in the breakdown lane of a Motorway whilst he attended to the adjustment of a mechanical problem with the vehicle. After he had rectified the problem he re-entered the vehicle as a passenger in order to resume the journey that he and his wife had embarked upon. 7In doing so, the defendant drove the vehicle out of the breakdown lane and into the path of a passing vehicle that was travelling in the same direction. A collision then ensued. There were two impacts in the course of these events. The two vehicles bounced off each other after the initial impact and then came into further collision with each other. The vehicle in which the plaintiff was seated then spun around several times before coming to rest in the middle of the road. The collision described by the plaintiff involved significant force and damage to the vehicle in which he was seated. In these events the plaintiff was thrown about within the cabin of the vehicle and sustained a number of injuries notwithstanding that he was wearing a seat belt. 8In the events that followed, the plaintiff felt shocked. He did not initially fully appreciate the nature and extent of his injuries. He therefore declined the suggestion made by an ambulance officer at the scene that he and his wife attend hospital for medical attention. Instead, he called some friends who then attended the scene and drove the couple to their home. At the time, the plaintiff became aware of pain in his neck, shoulders, back, abdomen and knees. 9Liability for the collision was not in doubt. In the defence filed in these proceedings, the CTP insurer has admitted the relevant facts giving rise to the claim. The CTP insurer has also admitted that there was a relevant breach of the duty of care owed to the plaintiff. 10On the following day, 22 May 2006, the plaintiff consulted his general practitioner, Dr Morsingh. At that time his principal concerns were neck pain and back pain. After arranging for an x-ray of the cervical spine, as that appeared to be the area of most concern to the plaintiff at the time, Dr Morsingh advised the plaintiff to the effect there was no abnormality shown on the x-ray. He also advised the plaintiff that the injuries to his neck and low back were of a muscular nature and that they would heal in time, and reassured him that he would recover from those injuries. In the interim the plaintiff was prescribed physiotherapy treatment along with painkilling and anti-inflammatory medication. 11The plaintiff stated, and I accept, that there was nothing arising from the medical consultations he had with Dr Morsingh that led him to believe he had been seriously injured. He said, and I accept, that at the time he saw Dr Morsingh he had not been advised by that doctor, or anyone else for that matter, to pursue a claim for damages for personal injury as a result of the accident in question. 12The plaintiff stated that he was initially unaware that he had a right to potentially claim compensation for his injuries. He also stated that in accordance with the initial medical advice he had received, he believed he would in time recover from his injuries. In accordance with that belief, he continued to work albeit with difficulty and he continued to take the medications that had been suggested to him by his doctor. 13In the months that followed, the expectation of the plaintiff was that he would recover from his injuries, even though he had difficulties with performing some of the physical aspects of his pre-injury employment as a spray painter. He said, and I accept, that in the context of him having taken some days off work as sick leave, his employer made some adjustments to his work regime and his co-workers assisted him with some of the physical tasks involved with his work. In these events there was no discussion of the possibility of a claim being made by the plaintiff for compensation for personal injury. He persevered with his work despite experiencing considerable pain because he was concerned to maintain the payments he was obliged to make in respect of his sizeable mortgage. 14On 16 October 2006 the plaintiff again consulted Dr Morsingh because he was experiencing a worsening of his low back pain at that time. The following day, at the referral of Dr Morsingh, he had an x-ray of the lumbo-sacral spine which reportedly showed no abnormality. 15Over the course of time, the plaintiff continued to hold the belief he would recover from his injuries. In the period up until 27 November 2007 he saw Dr Morsingh on several further occasions and he also had physiotherapy treatment for his neck and back problems. This was also in the context of receiving reassurance from Dr Morsingh to the effect that it was expected that he would recover from the problems he was experiencing. The plaintiff said, and I accept, that the physiotherapist who had treated his resultant muscular complaints had not suggested to him that he might have had a claim to pursue monetary compensation for his injuries. 16In November 2007, in addition to having ongoing neck and back pain, the plaintiff began to experience pain radiating from his back to his left thigh and leg. When he drew this problem to the attention of Dr Morsingh he was again reassured that he would experience recovery from these problems. In that expectation, the plaintiff continued to take the medications that had been prescribed for him. 17However, in November 2007 the plaintiff found that his work was causing him difficulties with aggravation of his neck and back pains. In December 2007 he arranged to change his employment, still within his trade as a spray painter. He believed that his new position would involve less arduous work. The plaintiff's belief in that regard was based upon his understanding of the particular work system that operated at the new employer's premises, where there was assistance from labourers available to him, thereby allowing him to carry out the less arduous tasks associated with spray painting, leaving the heavier work tasks to others. 18The new job also provided the plaintiff with the opportunity to carry out a different class of work than he had been doing beforehand. This was congenial to him as he had an ambition to build upon that experience in order to one day set up his own business in the automotive repair industry. 19Accordingly, whilst the plaintiff still continued to experience pain in his neck and in his back, even in that new employment, he persevered in his work without having an understanding that he had a right to claim compensation. During this time the plaintiff continued to work in his trade and was not experiencing any loss of earnings. 20These events continued until April 2008, when the plaintiff experienced some aggravated back pain due to the physical requirements of his work. On 14 April 2008 he again consulted Dr Morsingh for his worsening back and left leg pain. He was prescribed some stretching exercises and medication. He subsequently had a short period of medically certified time off work, but he then continued on in his employment, albeit whilst continuing to have pain and difficulty. 21On 25 June 2008, significantly, the plaintiff experienced what he described as a "clunk type noise" in his lower back whilst stretching. Thereafter, he experienced the onset of extreme lower back pain whilst carrying out the ordinary tasks of his work, which involved occasional bending down to pick up objects. He left work on that day, and on the following day he sought out medical attention. Dr Morsingh was not available for consultation at that time, so he saw Dr Parasu, another doctor in the same practice, for a consultation about the significant back stiffness he was experiencing at that time. Dr Parasu advised the plaintiff to apply some proprietary heat generating liniment to his back, and he gave him a medical certificate to remain away from work for 2 days. 22Co-incidentally, as the plaintiff was leaving the doctor's rooms he happened to meet his mother who was there to see another doctor whom she had been consulting. On being informed of the nature of the problem the plaintiff was experiencing, his mother insisted that the plaintiff consult the doctor she had been seeing, Dr Al-Horani, for further medical advice. Dr Al-Horani saw the plaintiff that same day and after taking a history of injury in the motor vehicle accident in question, he ordered a CT scan of the plaintiff's lumbar spine. That scan took place on 2 July 2008. 23On 3 July 2008, following receipt of the report on the CT scan of the plaintiff's back, Dr Al-Horani advised the plaintiff that he had a serious back injury. He immediately referred the plaintiff to Dr Owler, a neurosurgeon, and he provided the plaintiff with a medical certificate to remain away from work until 11 July 2008. Dr Owler was initially unavailable for consultation in the ensuing days, and as a result, Dr Al-Horani arranged for the plaintiff to undergo an MRI scan of his lumbo-sacral spine on 8 July 2008. 24In these events the plaintiff stated that, based on the previous medical advice he had received from Dr Morsingh, he had held what he had later come to recognise as being a misplaced optimism for his recovery from the injuries he had sustained in the accident in question. Instead, he had experienced deterioration in his symptoms. 25The plaintiff stated, and I accept, that it was Dr Al-Horani who first drew his attention to the prospect of looking into whether he could make a claim for compensation in respect of the injuries he had received in the accident in question. He then became concerned and pre-occupied that his injuries might have a seriously adverse impact upon his ability to earn a living, and he was also concerned about the cost of specialist medical treatment that may not have been recoverable through Medicare. 26The plaintiff stated, and I accept, that neither he nor anyone in his family or circle of friends and acquaintances had ever discussed the availability or possibility of him making a CTP insurance claim for damages for personal injury in respect of the accident in question. I also accept that this remained the plaintiff's position until a date in July that followed his consultations with Dr Al-Horani. 27In July 2008 the plaintiff met a friend of his wife, Ms Martinovic, who, on learning that the plaintiff was experiencing a worsening of his injury-related problems due to a motor vehicle accident, suggested that he pursue a claim for compensation for those injuries. 28Ms Martinovic recommended to the plaintiff that he consult Ms Pechanats, a solicitor in the law firm Keddies, for advice concerning the possibility of him making a claim for compensation. That advice was based upon Ms Martinovic's experience of her own mother having made such a claim. The plaintiff acted on that suggestion. Initially he ascertained that Ms Pechanats was away on leave at that time, so instead, on 14 July 2008, he saw another solicitor in that firm, Mr Valis, for advice on the matter that had been drawn to his attention. 29At his initial consultation with Mr Valis on 14 July 2008, the plaintiff had not come to that consultation prepared with the necessary claims information that was required by solicitors to investigate whether he had a claim. This included details of the owner or driver of the other vehicle, the insurance details of both vehicles, the name of the investigating police officer and the police event number assigned to the collision. That information was later provided to Mr Valis by the plaintiff's wife by email on the following day, once the requirements for this information were made known. 30At the 14 July 2008 consultation, Mr Valis advised the plaintiff firstly, of the need for a claim form of the type required under the MAC Act scheme to be lodged within six months of the date of the accident, and secondly, that the plaintiff was required to provide a full and satisfactory explanation to the CTP insurer for the delay that had occurred in lodging the claim form. 31At the hearing of the motion the insurer challenged the plaintiff's account of those events and suggested that the plaintiff must have known of the requirement to lodge a claim form within the required six-month period. The plaintiff explained that beforehand, he had never had occasion to have such knowledge. 32In the context of that challenge, I have considered the credibility of the plaintiff's evidence as summarised above. In that consideration I was left with the clear impression that the plaintiff gave his evidence carefully and honestly, and that he had been naïve to matters of CTP insurance claims before he received the advice on those matters from Mr Valis as he had described. I was reinforced in that view by the fact that when the plaintiff went to see Mr Valis on 14 July 2008, he had no idea what information or documentation he was required to bring with him in order for him to be in a position to be advised in connection with his possible rights concerning the accident in question. 33At the 14 July 2008 consultation with Mr Valis, the plaintiff was asked to sign the required authorities so that relevant information could be released and obtained on his behalf to enable a claim to be initiated on his behalf. 34On 15 July 2008 the plaintiff was informed by Dr Al-Horani that the MRI scan of his lumbar spine that he had undergone on 8 July 2008 had revealed a large disc prolapse in the lumbar spine, for which he would probably need surgical treatment. A report from Dr Al-Horani described the MRI finding as comprising a large paracentral disc protrusion at L5/S1 with marked compression of the S1 nerve root. 35The plaintiff later attended upon Dr Morsingh for the completion of a formal CTP medical certificate to enable his claim to proceed. He said that he took that step because at that time he believed that he needed to see that doctor for that certificate because the earlier historical consultations that had followed the 2006 accident had been with that doctor. 36On 16 July 2008, at the referral of Dr Al-Horani, the plaintiff was seen by Dr Owler, a consultant neurosurgeon, who informed him that he required prompt surgical treatment for his back condition as other treatments were of no assistance. Subsequently the plaintiff underwent a micro-discectomy procedure at Westmead Hospital on 14 August 2008. As a result he was given a certificate of unfitness for work until 25 October 2008. 37During these events the plaintiff was suffering from considerable stress due to his concerns about his medical condition and the impact that his medical condition might have upon his ability to work, and with regard to his ability to make the payments required by his mortgage. As a result of those matters he said, and I accept, that he became to a degree disorganised in the arrangement of his personal affairs. I infer from that evidence that he was preoccupied with his medical and financial position rather than focussing upon his legal rights to possibly claim compensation. 38However, the plaintiff attended to the required post-surgical examinations and he pursued the recommended rehabilitation treatment. He informed his solicitor of the fact that he had undergone surgery. 39On 21 August 2008 the plaintiff's solicitor wrote to him confirming his instructions on matters concerning the accident, and on the matters that were required for the completion of a claim form, and also concerning the requirement of providing the insurer with a full and satisfactory explanation for the delay in making the claim. The plaintiff stated, and I accept, that at the time he received that advice, he had understood that the relevant explanation for the delay needed to be submitted to the insurer at the same time the claim form was to be lodged. 40In the period between August and October 2008 the plaintiff was obviously pre-occupied with attending to medical appointments and his health, and financial concerns. In that time he also obtained a certificate from Dr Morsingh and provided his solicitors with information for the preparation of a statutory declaration in which he outlined for the insurer his explanation of the events and concerning the delay that had been incurred in making his claim. 41The plaintiff approved and signed a statutory declaration which dealt with those matters. A copy of that document was exhibited to his affidavit read in the proceedings. He understood that the required Personal Injury Claim Form and the explanation for the delay had been served on the CTP insurer on or about 24 or 27 October 2008. 42When the plaintiff returned to his pre-surgical employment on about 26 October 2008, he persevered with that employment for about 5 weeks before his employer asked him to resign from his position due to difficulties the plaintiff was experiencing in carrying out his work. The plaintiff's resignation was requested after his employer had beforehand tried to organise lighter work for the plaintiff to accommodate his neck and back problems. 43As a consequence of the above circumstances the plaintiff now seeks to make a claim for significant damages, including damages for past loss of earnings and for future loss of earning capacity. 44In these events, the plaintiff stated, and I accept, that he had no background knowledge of medical and legal matters concerning the need to abide by a time limit for lodging a claim. He said that he was reliant upon his medical and legal advisors concerning such matters, and that he complied with all requests for information from those advisors once he had consulted them for advice. Procedural history 45From 14 July 2008 until the present time the plaintiff has been represented by various solicitors. 46Between July 2008 and February 2009 he was represented by Mr Dimitrios Valis, a solicitor employed by his former solicitors, Keddies. Between February 2009 and December 2010 he was represented by Ms Irena Pechanats, another solicitor employed by Keddies. From December 2010 until the present time he has been represented by Ms Branka Vidic, a solicitor employed by his present solicitors, Slater & Gordon. 47On 9 October 2008 the plaintiff completed a MAC Act claim form that was served on the CTP insurer by the plaintiff's former solicitors, on or about 27 October 2008. Thereafter, the plaintiff's claim has been beset with additional delays due to a series of procedural events that I shall outline in the paragraphs that follow. 48On 30 October 2008 the CTP insurer rejected the claim form as incomplete because of a number of unanswered questions and because it considered the plaintiff's explanation for the delay in bringing his claim was not full and satisfactory. 49On 5 November 2008 the former solicitor for the plaintiff re-lodged the plaintiff's claim form with the CTP insurer and drew attention to an apparent misunderstanding on the part of the insurer. On 27 November 2009 the CTP insurer acknowledged there had been some confusion in its earlier correspondence in which the plaintiff's explanation was rejected. The CTP insurer nevertheless again rejected the plaintiff's explanation for the delay in lodging his claim without providing much in the way of reasons for taking that stance. 50On 9 March 2009, the plaintiff's former solicitor made an application for a CARS 5A special assessment. The application was served on the CTP insurer on the same day. The insurer was asked to reconsider its previously maintained stance in rejecting the plaintiff's explanation for his late claim. On 19 March 2009 the CTP insurer again rejected the plaintiff's claim as being not full and satisfactory, pointing to a 3-month delay between the time the plaintiff sought legal advice and the time the claim form was lodged. 51On 21 May 2009, after a short delay due to some administrative procedures, the plaintiff's former solicitor forwarded a CARS Form 2A to the CTP insurer seeking a general assessment. On 26 May 2009 the Motor Accidents Authority rejected the plaintiff's application as being incomplete in respect of one question and because of a belief that there was no discretion to accept late applications in the circumstances of this case. 52On 28 May 2009, the plaintiff's former solicitor forwarded a fresh CARS 2A application for general assessment. On 3 June 2009, the Motor Accidents Authority also rejected that application as being incomplete. The reason for rejection was a belief that the s 91 time limits provided by the MAC Act scheme had not been satisfied. 53On 9 June 2009 the plaintiff's former solicitor provided some unsworn draft affidavits to CARS and the CTP insurer in an endeavour to hasten the progress of the plaintiff's application. 54On 11 June 2009, the former solicitor forwarded a further CARS 2A application for general assessment. The Motor Accidents Authority acknowledged that application on 19 June 2009. 55On 2 July 2009 a CARS Assessor issued a certificate pursuant to s 96(3) of the MAC Act stating that a late claim could not be made by the plaintiff pursuant to s 73 of the MAC Act because the explanation proffered by the plaintiff, whilst accepted as being full, was nevertheless considered to be not satisfactory. That certificate was sent to the plaintiff's solicitor by letter dated 16 July 2009. 56On 16 July 2009, the CTP insurer issued a reply to the plaintiff's application dated 11 June 2008, asserting that the CTP insurer was not required to issue a s 81 notice "on a claim that had not been duly made". 57On 17 August 2009 the Principal Claims Assessor of the Motor Accidents Authority dismissed the plaintiff's CARS 2A application and closed the CARS file relating to the plaintiff's claim. Reasons were issued for that decision on 18 August 2009. 58The effect of the decision by the Principal Claims Assessor to dismiss the application and close the file was to deny to the plaintiff the procedural certificates he sought and required under s 92 and s 94 of the MAC Act. This meant that the plaintiff was unable to satisfy the requirements of s 108(1) of the MAC Act, and he was therefore unable to commence court proceedings in respect of the injuries he sustained in the subject accident. 59In December 2010, the conduct of the plaintiff's case was taken over by his present solicitors, Slater & Gordon. Following that change in the plaintiff's legal representation, some satellite litigation ensued and took some time to follow its course. 60On 15 April 2011, the plaintiff sought judicial review of the decision by the Principal Claims Assessor to dismiss his claim on procedural grounds. On 15 May 2010 the plaintiff's claim for declaratory relief was refused: Gudelj v MAA [2009] NSWSC 436. The plaintiff lodged an appeal from that decision. 61The appeal from that decision was determined on 24 June 2011, and in the result it was held that the plaintiff was entitled to the issue of a certificate of exemption from the CARS process: Gudelj v MAA [2011] NSWCA 158. 62There was a subsequent short delay whilst the CTP insurer took the opportunity to seek the advice of senior counsel on whether to seek special leave from the High Court to appeal from the decision of the Court of Appeal. The proposed application did not proceed. 63On 3 August 2011, a CARS Assessor issued the plaintiff with a certificate of exemption entitling him to proceed with this claim. That exemption remains dependant upon the matters with which these motions are concerned. 64On 27 September 2011, the plaintiff's statement of claim was filed. On 20 October 2011 the CTP insurer filed the notice of motion under present consideration seeking dismissal of the plaintiff's proceedings. Legislation 65A claim for damages under the MAC Act scheme must be made within six months following the occurrence of injury due to a motor accident: s 72(1) of the MAC Act. Claims made after that period are to be considered as late claims: s 73(1) of the MAC Act. Proceedings brought in respect of a late claim must be dismissed absent a full and satisfactory explanation for the delay in making the otherwise late claim: s 73(4) of the MAC Act. 66Without the leave of the court, late claims may not be commenced more than 3 years after a motor accident: s 109(1) of the MAC Act. Leave must not be granted unless the claimant provides a full and satisfactory explanation to the court for the incurred delay: s 109(3)(a) of the MAC Act. 67A full and satisfactory explanation requires a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date the explanation is provided, and the explanation cannot be considered to be satisfactory unless a reasonable person in the position of the claimant would have failed to make the claim earlier and would have been justified in experiencing the delay in question: s 66(2) of the MAC Act. Issues 68The defendant's insurer ultimately conceded that in the event the plaintiff was otherwise entitled to proceed with his claim, the damages likely to be awarded to the plaintiff would exceed the monetary threshold of $89,750, this amount being 25 per cent of $359,000, as is required by s 109(3)(b) of the MAC Act. 69According, the principal question to be determined in these motions is whether the explanation provided by the plaintiff for the delay in bringing his proceedings should be accepted as being full and satisfactory to justify the grant of leave for him to continue with his claim, instead of dismissal of the proceedings, as is sought by the defendant's CTP insurer. 70The subsidiary question is the further issue of whether a relevant prejudice to the defendant has arisen which contra-indicates a grant of the leave sought by the plaintiff. Array of evidence 71In the motion filed by the defendant, the only affidavit read was that sworn on 12 October 2011 by the solicitor for the defendant, Mr Peter Hunt. 72In the motion filed by the plaintiff, affidavits were read from the following deponents: the plaintiff's affidavit affirmed on 15 December 2011; the affidavit of Ms Branka Vidic, the solicitor for the plaintiff, sworn on 31 January 2012, and the affidavit of Ms Renata Martinovic, a friend of the plaintiff, sworn on 23 March 2012. 73In addition to voluminous statements and medical reports annexed to affidavits read in the course of the hearing of the plaintiff's motion, additional correspondence between the parties and further medical reports were tendered in the series Exhibits "A" to "C". Relevant periods of delay requiring full and satisfactory explanation 74Initially, the CTP insurer contended that the period of delay requiring a full and satisfactory explanation was extensive. Ultimately, the parties agreed that there were two relevant periods of delay. The first period related to the initial period of six months following the accident. The second period was in relation to the subsequent period of two years and five months from that time until the claim was lodged. 75The plaintiff carries the onus of satisfying the court that he has fulfilled the requirements of s 66 of the MAC Act, and that the explanation proffered by him is both full and satisfactory: Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, per Basten JA at [14]. In other words, the plaintiff must justify the delay: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, per Gleeson CJ at [7]. Explanation for delay proffered by plaintiff 76The explanation proffered by the plaintiff for the delay in bringing his claim is set out in paragraphs [159] to [166] of the affidavit he affirmed on 15 December 2011. 77Essentially, the plaintiff explained that within the six months that followed the accident, he had relied upon the reassurance provided to him by Dr Morsingh to the effect that his injuries were only of a muscular nature without any apparent abnormality on x-ray examination. He therefore viewed his injuries through an optimistic prism in the expectation he would make a recovery from what he had understood to be soft tissue injuries. 78The plaintiff also stated that it was only after he saw Dr Al-Horani on 3 July 2008, some twenty six months after the accident, that he first came to realise he was more seriously injured than he had first thought. At that time, reasonably, he realised the potential financial implications of his injuries, and he thereafter set in train the investigatory steps and consultations that ultimately led to a late claim being filed on his behalf. 79The plaintiff further explained that he had not beforehand known of the existence of claims procedures and applicable time limits for the taking of necessary steps to protect his legal right to make a claim. He only acquired that knowledge after the possibility of a claim had been broached with him by Dr Al-Horani in the context of a medical examination, and also by Ms Martinovic in the context of a social meeting. 80These events all occurred well outside the six-month period which was required for the lodgement of a claim form. 81The plaintiff also explained that following the diagnosis in July 2008, of an injury to a disc in his lumbar spine, the delay between that time and the lodgement of his claim form, was due to him being primarily focussed upon his post-operative recuperation and his accident-related health issues. By this he meant he was at the time less concerned with legal matters, the details of which were outside his knowledge. 82The CTP insurer challenged the adequacy of the plaintiff's explanations. 83The plaintiff's responses to his circumstances may not have been in accordance with the actions of some other persons in the community who may have been more pro-active and focussed on seeking to ascertain whether they had rights to claim compensation and if so, what should be done to pursue such rights, including applicable timeframes for action to be taken. However, that is not the essential question to be determined here. 84Instead, in determining what a reasonable person in the circumstances of the plaintiff would have done, regard must be had to a broader range of personal characteristics and concerns that would have operated to influence the response of such a hypothetical reasonable person. Whether proffered explanation is full and satisfactory 85During the period of delay in question here, it is only the explanations relating to the actions of the plaintiff that require examination because there is no suggestion of any shortcomings concerning the actions of his legal representatives. 86There are many authorities that deal with the consideration of what constitutes a full and satisfactory explanation in cases of this kind where leave is sought to maintain or to pursue a late claim. Necessarily, the common theme in the authorities is that each case must be decided upon its own facts and circumstances; see for example: Ellis v Reko Pty Limited [2010] NSWCA 319, at [18], per Young JA. 87In assessing whether the proffered explanation is full and satisfactory it is relevant to bear in mind that such explanations need not be to the degree of perfection, or involve a burdensome recounting of all that comprised the minutiae of the events that have arisen during the period that has elapsed and which requires explanation: Walker v Howard [2009] NSWCA 408, per Allsop P at [104], following Diaz v Truong [2002] NSWCA 265 at [122] per Foster AJA. 88I take this to mean that what is required is a reasonable overview of the relevant events that determined the path taken by the plaintiff. 89In applying these principles to the considerations identified in s 109(1) of the MAC Act, for the reasons that follow, I have concluded that to the requisite extent, the plaintiff has provided a full and satisfactory explanation for the delay in bringing his proceedings. 90The relevant considerations for that assessment are the conduct, knowledge and belief of the plaintiff gauged against what a reasonable person in the position of the plaintiff would have experienced in the circumstances: s 66(2) of the MAC Act. 91It is therefore convenient to first identify the position of the plaintiff, or as the defendant's submissions characterised it, the s 66(2) person. 92Without intending any disrespect to the plaintiff, it was plain from his evidence, and from the way he gave is evidence, that he is a relatively unsophisticated man of few words who, at the time of his injury, and until the time when he was alerted by Dr Al-Horani to the possible need to obtain legal assistance in respect of his rights to claim compensation for his injuries, he was unaware of the structure and requirements of the scheme for the making of claims for compensation under the MAC Act. It raises the question as to why Dr Al-Horani would have raised such a question with the plaintiff. In my view this is an important starting point for a consideration of his conduct and actions. 93Whilst there may be many people in the community who have undoubtedly acquired an understanding of the workings of the MAC Act scheme, either in general or specific terms, I consider that the plaintiff's explanation that such matters were outwith his knowledge, understanding and experience, was reasonable. I accept his evidence in that regard. 94It stands to reason that in a social environment where lawyers are prohibited from advertising their services for personal injury claims (Part 5 of the Legal Profession Regulation 2005) that the availability of access to legal advice on such matters is not necessarily something that an unsophisticated working man, even someone with qualifications as a tradesman spray painter, would be expected to know as a matter of course. 95The plaintiff said, and I accept, that during the relevant period that followed the accident, he thought the purpose of third party insurance was to cover the driver of a motor vehicle: T21.20. His evidence at T15.16 to T15.31 in which he said he knew compensation could be obtained for injuries sustained in motor vehicle accidents has to be read in that light. Whilst the plaintiff's stated belief is an unusual view, and was objectively incorrect, I do not consider that his evidence to that effect was outside the array of acceptable variations of what might be considered to represent the knowledge or lack of knowledge of a reasonable person in the position of the plaintiff. Accordingly, I do not consider that the plaintiff's evidence on this point should be seen to be improbable or unlikely so as to necessarily require rejection. 96Against that background, it is necessary to examine the plaintiff's conduct both in the initial period of six months following his injury between May and November 2006, and thereafter, until the provision of the explanation he has set out in his affidavit affirmed on 15 December 2011. 97In addition to the plaintiff's initial lack of awareness that he should make a claim for personal injury in the first six months after the accident, in my view, accepting the plaintiff's evidence as I do, the overarching consideration in that period of six months was the plaintiff's belief, based on the medical advice he received, that his injuries were of a muscular nature only, and should result in a recovery from the effects of the accident. 98This is particularly so since the person who gave that advice was a qualified medical practitioner upon whom the plaintiff was entitled to rely in respect of such advice, and where the advice in question was in turn based on a number of consultations and physical examinations of the relevant parts of his body that were injured, in addition to the negative x-ray findings. 99Reasonably, the plaintiff accepted and acted upon that advice and persevered with his work in accordance with the intimated expectation that he would recover from his injuries. In my view, a reasonable person in the position of the plaintiff in those circumstances, holding that view, would not necessarily be focussing on making a claim for compensation. Even if he had sought advice as to his legal rights at that time, given the thresholds inherent in the MAC Act scheme, it is unlikely he would have received advice that encouraged such a claim. The evidence at that time would have been unlikely to justify a certificate enabling a claim for non-economic loss and there was no claim for loss of earnings at that time. 100In those circumstances, I also consider that a reasonable person in the position of the plaintiff, who also carried the burden of responsibility that goes with making payments to manage a significant mortgage, and who was working in an understanding work environment, would have done just what the plaintiff did. In my view, a reasonable person in the circumstances of the plaintiff would have more likely put up with the measure of discomfort experienced by the plaintiff whilst he was under the are and advice of Dr Morsingh, and would most likely have continued to carry on with his work with an attitude of optimism whilst the injuries took time to resolve, as was his belief, based on the prediction given to him by Dr Morsingh. 101I do not consider that a reasonable person in the position of the plaintiff would have questioned Dr Morsingh's optimistically framed medical advice, including to the extent of seeking out legal advice in that initial period where the plaintiff was expecting to recover from his injuries. This is a different position to that where a plaintiff worked in a legal environment and was in a position to question advice: Figliuzzi v Yonan [2005] NSWCA 290. 102Accordingly, I consider that the plaintiff has given a full and satisfactory explanation for not lodging his personal injury claim within the initial six months that followed the accident as was required by s 72(1) of the MAC Act. 103I now turn to a consideration of the delay that occurred between the expiry of that initial six month period and the time when the plaintiff affirmed his affidavit on 15 December 2011, and in particular, the more confined delay of three months between July 2008 (when the plaintiff was told by Dr Al-Horani that he had a serious back injury) and 27 October 2008 (when the plaintiff's former solicitor lodged the personal injury claim form under the MAC Act scheme). 104In my assessment, the factors that affected the plaintiff's conduct or actions in not lodging a claim form within the initial six month period, and as considered above, continued to operate upon him at least until 25 June 2008, when he experienced a significant change in the condition of his back whilst stretching. 105I consider that in the ensuing events, the plaintiff acted reasonably and promptly in seeking out medical assistance. In the course of doing so, on 3 July 2008 Dr Al-Horani told him he had a serious problem with his back. The route by which the plaintiff subsequently sought out legal advice is not important for the purposes of this aspect of the consideration. All that needs to be observed is that on 14 July 2008, prudently, the plaintiff consulted a solicitor. 106In my assessment, that course of action was in conformity with the expected conduct and actions of a reasonable person in his circumstances who had, understandably, experienced a material change in his level of understanding and concern over his accident related condition of health and the implications of such circumstances to his financial circumstances and employment. As a result, I consider that this particular component of the delay has been fully and satisfactorily explained by the plaintiff. 107It then remains necessary to consider the implications of the delay that operated during the interval of time between the plaintiff's first consultation with his solicitor on 14 July 2008, and the timing of the lodgement on his behalf of the personal injury claim form on or about 27 October 2008. 108It must be observed that also in that time, the plaintiff was not only coming to grips with a material change in his health and his understanding of the nature of the underlying problem, including his need for surgical treatment for a belatedly diagnosed serious injury to his lumbar spine. In that regard, he was also required to come to grips with the flow-on effects of those matters concerning his employment and his financial obligations generally, as well as very real and worrying concerns over his mortgage liabilities and commitments. 109It is therefore not surprising, and entirely understandable, that the plaintiff became preoccupied with such matters, and as a result, became to a degree unfocussed and disorganised concerning his personal affairs. 110Importantly, it has not been shown that such an attitude of preoccupation on his part had any material impact on the timing of the filing of his claim form, as during this period, that task was in the hands of experienced solicitors whom the plaintiff was entitled to rely upon to do all things reasonably necessary in order to advance his claim without significant delay: Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, per Basten JA at [33]. 111In this latter period, I consider that the plaintiff's conduct and actions were also in conformity with what would have been expected of a reasonable person in his circumstances. It therefore follows that this latter component of the delay on behalf of the plaintiff in the lodgement of the claim form has, to the required degree, also been fully and satisfactorily explained by the plaintiff. 112Accordingly, subject to a consideration of whether any relevant prejudice to the insurer has resulted from the delay, I consider that the plaintiff is entitled to the procedural leave he seeks. Whether prejudice relevantly arises 113On behalf of the CTP insurer it was submitted that the plaintiff's late claim has resulted in an actual or material prejudice in addition to the assumed or presumptive prejudice that is inherent in litigation. 114That submission must be evaluated in the context that the CTP insurer has admitted a breach of duty of care. 115The only argument advanced on behalf of the insurer in support of the claimed prejudice was that it has been denied the opportunity of having had the plaintiff medically assessed in its interests in a reasonable time frame. In my view that submission is effectively answered by the fact that the insurer has, as I have been informed by counsel, had the plaintiff medically examined, and no report of that examination was forthcoming in evidence to support the submission relied upon. 116In my view, the defendant has not made good its submission of actual prejudice preventing the likelihood of a fair trial. There is no reasonable basis upon which it could be inferred that the late claim has made the chances of a fair trial unlikely in this case: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, per McHugh J at page 550. Disposition 117Having found that the plaintiff has provided a full and satisfactory explanation to the court for the delay in bringing his late claim, it follows that the plaintiff's motion seeking leave to proceed must succeed, and therefore the defendant's motion seeking dismissal of the proceedings filed by the plaintiff must fail. Costs 118The defendant has submitted that in the event the plaintiff succeeds in maintaining his proceedings, consistent with an earlier decision I have made on a costs question concerning a notice of motion involving issues that arose pursuant to s 109 of the MAC Act, the cost of the motions should be borne by the party seeking the indulgence, here the plaintiff: Taylor v Chown [2010] NSWDC 63, at [78]. 119Whilst is it generally desirable wherever reasonably possible, in the interests of consistency and comity, that earlier decisions on similar issues be followed, the overriding consideration is that an award of costs is a discretionary matter which requires the consideration of the individual circumstances of the case at hand: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. 120It follows that there is no general rule of universal application to all cases where the exercise of discretion is required because such cases almost invariably involve different considerations and circumstances. 121Turning to the circumstances of this case, whilst the defendant was entitled to leave it to the decision of the court as to whether the plaintiff had provided a full and satisfactory explanation for the delays in question, it was equally available to the defendant to recognise the force of the plaintiff's evidence and argument and accept the late claim. Instead the defendant mounted an unsupported argument of alleged actual prejudice. In those circumstances I consider that costs should follow the event. 122Accordingly, I consider that the plaintiff is entitled to have his costs paid in respect of the defendant's unsuccessful motion seeking dismissal of the plaintiff's proceedings. 123Noting that the costs concerning the motion the plaintiff filed by leave at the commencement of the hearing would appear to have involved only minor costs, as there was considerable overlapping of the issues and evidence in the respective motions, I consider that the appropriate order is that each party should bear their own costs of that motion. Orders 124I make the following orders: (1)The Notice of Motion filed by the defendant on 20 October 2011 seeking dismissal of the plaintiff's proceedings is dismissed; (2)The defendant is to pay the plaintiff's costs of the dismissed motion; (3)Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to commence these proceedings, with effect from 27 September 2011; (4)Pursuant to s 73 of the Motor Accidents Compensation Act 1999, declaration that the plaintiff has provided a full and satisfactory explanation for the delay in making the claim comprising these proceedings; (5)Each party is to pay their own costs of the Notice of Motion filed on 7 June 2012 by which orders were sought pursuant to s 73 and s 109 of the Motor Accidents Compensation Act 1999. 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: 18 June 2012