District Court New South Wales Medium Neutral Citation: Davis v Dagg [2012] NSWDC 303 Hearing dates: 25 May 2012 Decision date: 29 June 2012 Before: Olsson SC DCJ Decision: 1. Notice of Motion filed 23 March 2012 is dismissed. 2. Leave granted to plaintiff to file and serve Statement of Claim within 14 days. Catchwords: Leave to commence proceedings out of time - s 109 Motor Accidents Compensation Act 1999 - whether full and satisfactory explanation for delay Legislation Cited: Motor Accidents Compensation Act 1999 Road Transport (Drivers Licensing) Regulations 2008 Cases Cited: Blackburn v Allianz [2004] NSWCA 385 Diaz v Truong [2002] NSWCA 265 Ellis v Reko Pty Limited [2010] NSWCA 319 Figliuzzi v Yonan [2005] NSWCA 290 Holt v Wynter (2000) 49 NSWLR 128 Russo v Aiello [2003] HCA 53 Thornton v Sweeney [2011]NSWCA 244 Category: Interlocutory applications Parties: PETER FRANCIS DAVIS (Plaintiff) SAMUEL DAGG (First defendant) TRACEY DAGG (Second defendant) Representation: Mr S Dixon (Plaintiff) Mr P Cummings (First and second defendants) O'Brien & O'Brien (Plaintiff) Moray & Utiger (First and second defendants) File Number(s): 2012/67448 Publication restriction: No Judgment 1By a Summons filed on 24 February 2012 the plaintiff, Peter Francis Davis, sought an order pursuant to s 109 of the Motor Accidents Compensation Act 1999 ("MACA"), that leave be granted to him to extend the time for commencing proceedings. 2In order to obtain that relief, the plaintiff sought concomitant orders that he had fulfilled his obligations (also under s 109 of the MACA) to provide a full and satisfactory explanation for his delay in making his claim and commencing proceedings, and that if he was successful in his action, his damages would be greater than 25% of the maximum amount awardable under s134 of the MACA. 3The first defendant filed a Notice of Motion on 23 March 2012 which sought orders that the proceedings commenced by the plaintiff be dismissed pursuant to s 73(5) of the MACA. Background 4The plaintiff was born on 2 November 1988 and is now aged 23. 5On 29 April 2007 the plaintiff had attended a mutual friend's eighteenth birthday party with the first defendant, Mr Samuel Dagg, and others. 6Samuel Dagg had driven his mother's Toyota Camry to the party. Mrs Dagg is the second defendant, having been sued pursuant to the statutory agency imposed by s 112 of the Act. 7As at 29 April 2007, the plaintiff held only a learner's driving permit and had completed about 30 hours driving experience in his father's Commodore. The first defendant held a red provisional driver's licence. 8The plaintiff and first defendant knew each other well, having been to school together and having played sport together. 9Both the plaintiff and the first defendant drank a significant amount of alcohol at the party. 10The party continued well into the evening. Sometime after midnight, the plaintiff and the first defendant left the party probably to obtain some hot food. 11They took the second defendant's car and drove towards Branxton. On the return journey, the car veered off the road and hit a telegraph pole at the entrance to Branxton Cemetery. 12The circumstances of the accident are not precisely known as neither the plaintiff nor the first defendant have any actual memory of the accident. In fact, neither remember anything much from about 10.00 pm onwards, and there is no one who can shed any conclusive light on the circumstances leading up to the driving and the accident. 13It is reasonably clear, however, from the subsequent Police investigation that Peter Davis was driving - he had been found in the driver's seat - and Samuel Dagg was the passenger. 14The evidence of people who attended the party was limited for various reasons. 15Ms Brigitte Shields, a young lady who had also attended the party, gave the most detailed account of the evening prior to the plaintiff and first defendant leaving the party. She had observed the first defendant waving the keys to the car around and asking whether someone would drive the car in order to go and buy food. She thought that both Peter Davis and Samuel Dagg were intoxicated. She also believed from the nature of the relationship between the two (that is, that they had been at school together and played sport together) that Samuel would have been aware of Peter's learner driver status, and similarly Peter would have been aware of Samuel's provisional licence status. 16Both the plaintiff and first defendant were injured. In the case of the plaintiff, he sustained serious head and brain injuries and was hospitalized for a month, after which he required extensive rehabilitation. He continues to suffer from the injury to his brain, was not able to finish his schooling to year 12 and said that he sometimes has difficulty in understanding what he is being asked and told and has difficulty with his memory. He has problems with his balance and co-ordination. He relies a lot on his father for advice and help. 17The Police Accident Investigation Unit attended the accident scene and attempted to determine what had caused the driver to lose control, veer across the road and collide with a telegraph pole. 18The Police determined that the accident occurred on Maitland Street - a two lane road in a 60 kilometre per hour speed zone. The Senior Constable who prepared the Accident Investigation Report of 27 July 2007 was of the opinion that the vehicle was travelling in excess of 60 kilometres an hour. He noted that there were skid marks that were "consistent with a vehicle that had rotated around its centre of mass". He noted "the rear passenger tyre skid mark was consistent with a tyre that was locked and sliding across the road surface. The difference in the striation marks within the front and rear passenger tyre skid marks is indicative of a hand brake application while the vehicle is in forward motion, causing the rear wheels to lock but still allows the front wheels to rotate. The application of a hand brake whilst a vehicle is in forward motion has the capability to induce a rapid rotation around its centre of mass". 19The plaintiff was charged with a number of offences: dangerous driving occasioning actual bodily harm, negligent driving occasioning grievous bodily harm, driving in a manner dangerous, negligent driving, learner not accompanied by driver, police officer or tester and drive with middle range PCA. 20The criminal charges were finalized in June 2008 by which time the plaintiff (and his father, who advised him) had received and read the Police brief of evidence which included the report referred to above. 21Thus, as at June 2008, the plaintiff and his father were aware that the plaintiff: (i)had been driving with a middle range prescribed concentration of alcohol; (ii)had been driving the car on learner's plates; and (iii)had probably been speeding. 22The plaintiff did not commence proceedings within the three year time period provided for in s 109 of the MACA. He did not complete a claim form and lodge it with GIO until 26 November 2010. When the claim had been lodged (by his present solicitor) a number of events occurred which are consistent with the processing of an application of that sort. His solicitor responded as and when required in respect of that claim including a CARS assessment. 23Correspondence travelled backwards and forwards between the parties until June 2011. During that month, the plaintiff discovered that he was suffering from thyroid cancer which required surgery and post surgical treatment. It appears there was a period after June 2011 when the plaintiff's claim was stagnant as a result of the plaintiff advising his solicitor that he needed to concentrate on his treatment. The treatment ultimately delivered a favourable prognosis, received by the plaintiff in or about January 2012. Thereafter his claim was pursued without any further delay by his solicitor, culminating in the present Summons being filed in March 2012. The Plaintiff's Case 24The plaintiff tendered the Statement of Claim that he intended to file, should leave be granted to do so. 25In it, the plaintiff alleged that:- (a)The first defendant requested the plaintiff to drive him to a nearby food outlet and handed him the keys to the car; (b)The first defendant was aware that the plaintiff held a learner's drivers licence with limited experience; (c)The first defendant was a person and driver in charge of the motor vehicle and a person supervising the plaintiff's driving; (d)The handbrake was suddenly activated while the car was in motion causing the rear wheels to lock up and skid and the plaintiff to lose control of the vehicle and collide with a telegraph pole. 26The draft Statement of Claim included the following particulars of negligence:- (a)The first defendant failed to properly or at all supervise the driving of the plaintiff contrary to Regulation 16 of the Road Transport (Driver Licensing) Regulations 2008. (b)The first defendant permitted the plaintiff to drive the vehicle at an unsafe speed. (c)Interfering with the plaintiff's control of the vehicle in that the first defendant pulled on the handbrake while the vehicle was in motion, contrary to Australian Road Rule 272. (d)The first defendant requesting and allowing the plaintiff to drive the Toyota when he was aware that he did not have a full driver's licence. (e)The first defendant requesting and allowing the plaintiff, in the knowledge that the plaintiff was a Learner driver, to drive the Toyota when was (sic) aware that the plaintiff had consumed alcohol and was intoxicated. (f)Requesting and allowing the plaintiff, who he knew to be a Learner driver, to drive the Toyota when the first defendant had consumed alcohol and was intoxicated at the time. (g)The first defendant failed to take all reasonable precautions to prevent the plaintiff from contravening the road transport laws, rules, regulations contrary to Regulation 16 of the Road Transport (Driver Licensing) Regulations 2008. (h)The plaintiff repeats as against the second defendant the particulars of negligence specified against the first defendant, on the basis that the first defendant was the statutory agent of the second defendant, as owner. (i)Failing to instruct the plaintiff in the safe operation of the controls of the Toyota and to inform the plaintiff of the operation of the handbrake. 27The plaintiff acknowledged in argument that a significant element of contributory negligence would be found. 28The allegation that the defendant negligently applied the handbrake while the car was in motion, and it was that application that caused it to rotate with a loss of control was taken from the police accident report. The Law 29In order to be 'full and satisfactory' an explanation for delay has to be both 'full' and 'satisfactory'. The definition of full and satisfactory is found at s 66(2) of the MACA and reflects authorities on analogous provisions of previous legislation. Section 66(2) is in these terms:- "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." 30In the present case the period to be covered by the explanation is the period from the date of the accident until the hearing of the present action (as s 109(3) requires). 31In order to be 'full' the explanation has to be full and complete so that the court can evaluate all the reasons for the delay (see Blackburn v Allianz [2004] NSWCA 385) and it must also contain a full account of the conduct, including the actions, knowledge and belief of the claimant across the whole of the period of delay (see Figliuzzi v Yonan [2005] NSWCA 290 per Tobias JA at [58]). 32The word 'full' must be given a real meaning and it is not sufficient for a claimant to give blanket evidence of general ignorance: Ellis v Reko Pty Limited [2010] NSWCA 319 at [31]. 33The conduct which was the subject of explanation is not limited to that of the claimant in person. What is required is a full account of the conduct of the claimant and persons acting on behalf of the claimant in so far as that conduct was relevant to the delay: Diaz v Truong [2002] NSWCA 265. 34In Russo v Aiello [2003] HCA 53 per Gleeson CJ at [4] (a case dealing with analogous legislation) the High Court said: "The concept of a 'full and satisfactory' explanation' is, to some extent, explained by s 40(2), which deals with the two elements as follows. A full explanation is said to be 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 word 'full' takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant. The subsection goes on to provide that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay": 35A 'satisfactory' explanation sets an objective standard of what a reasonable person in the position of a claimant would have done. 36The defendant argued that the plaintiff did not satisfy the 'full and satisfactory' test and moreover, argued that in any event, the plaintiff's claim was not arguable and was bound to fail. 37Even if the plaintiff can provide a full and satisfactory explanation, the granting of leave is still a matter for the court's discretion and ought not be granted if to do so "would result in significant prejudice to the potential defendant": Holt v Wynter (2000) 49 NSWLR 128 at 147 per Sheller JA. 38There is a further requirement that the plaintiff has to establish that his likely damages if he were to succeed would be greater than 25% of the maximum non economic loss available at the time of the accident. The parties agreed that this threshold had been met and accordingly, it is unnecessary to consider the evidence adduced in respect of it, although I note that the report of Dr Fearnside is supportive of that conclusion. 39The court must also consider the extent of any actual prejudice or presumptive prejudice that the defendant might experience by reason of the plaintiff's delay and whether there are circumstances in which the defendant would be unable to have a fair trial of the matters in issue. 40Finally the court should consider whether or not the grant of any extension of time is just and reasonable and required by the demands of justice. The Evidence 41The evidence led by the plaintiff came from the plaintiff himself, the plaintiff's current solicitor and the plaintiff's father. 42The first defendant, Peter Davis, said that he has an ongoing difficulty with memory, co-ordination, organisation and relies heavily on his father for help. He was not able to recall whether his father did or did not tell him that he did not have a claim, but he assumed that he did not because he was on learner plates and because he had been drinking at the time of the accident. 43His explanation for the delay from the date of the accident until the present time is quite simply the belief that he did not have any right to bring an action. It was not unreasonable in my view for him to have formed that view and that it had pervaded his attitude to the accident. There were concurrent explanations as well for his delay. 44Firstly, his injuries were serious and took time to resolve. 45Secondly, he was left with residual brain damage which adversely affected his ability to concentrate and absorb information. 46Thirdly, he was facing a number of serious criminal charges arising from the accident that did not resolve until mid 2008. 47Fourthly, some advice had been sought and was not forthcoming, leading him to the view that he had no cause of action. 48Finally, and importantly in my opinion, he was diagnosed with thyroid cancer in mid 2010 which required surgery and further treatment and which no doubt took absolute priority in his mind. 49I do not consider that in order to demonstrate a full and satisfactory explanation a claimant has to go into minute detail or provide pages of reasons. The truth of this matter is that Mr Davis sincerely believed (and reasonably in my view) that he could not have had a cause of action given the circumstances of the accident. That view was sincerely held from the date of the accident (or such time thereafter as he was conscious and capable of reasoned thought) until he conferred with Ms Baker. 50Kevin Davis, Peter's father, impressed me as candid and forthright. He said that Peter was in hospital for a month and then started to undergo rehabilitation and he assisted him in that. He said that the medical staff at the hospital had told him that Peter should not talk to anyone about the accident because "he has suffered a serious brain injury and it would not help his recovery to try and remember the accident at this time". 51Mr Davis took that advice literally. When a representative of the GIO visited him between June and October 2007 to discuss the accident in the context of Samuel Dagg's third party claim, he told her what the medical staff had said and gave her the details of their (then) solicitor. 52After that, Mr Davis Senior attempted to contact Mr Smythe, solicitor, who had been engaged to act for Peter in respect of criminal charges and asked him whether or not Peter might have had a third party claim. He rang on two occasions and received no reply and on 19 October 2007 he wrote a letter asking (amongst other things) whether Peter should bring a third party claim. 53Mr Davis Senior's evidence is that he received no response and took the silence as confirmation that there was no cause of action available. He may have told Peter that he did not have a claim. As the Police investigation continued it became more and more apparent to Mr Davis senior that his son had been drinking, was the driver of the vehicle, and was on his learner plates, and as a result of those things believed that he would not have any type of claim. 54The plaintiff was eventually convicted of various offences on 18 June 2008 by which time the Police had served their medical and accident reconstruction report. Although the Police report referred to the application of a hand brake, Mr Davis Senior did not believe that it was of itself a significant matter in circumstances where his son did not recall any of the accident. 55He retained alternate solicitors to appear for Peter in the criminal charges, and briefed counsel. Neither of those persons advised either the plaintiff or his father that they had, or might have had a personal injury claim, or that if he did, any time limitations were applicable. 56Mr Davis Senior was a manager of an electrical firm. He said he had never been involved in a motor vehicle accident before and was not aware of time limits in respect of making claims. Certainly, the plaintiff was not aware of any time limits or any requirements for claims to be made within certain periods of time. 57The first the plaintiff knew of the potential of a cause of action was on or about 23 November 2010, some three years and seven months after the accident when the plaintiff and his father spoke to Ms Wendy Baker, Solicitor. They had consulted Ms Baker about another matter, but in the course of conversation the matter of the accident arose and Ms Baker gave the plaintiff some advice and gave him a claim form to send to the CTP insurer, GIO, on 26 November 2010. Thereafter, the matter proceeded with all due promptness on the part of the plaintiff and his solicitor. 58The GIO requested a full and satisfactory explanation letter by 31 December 2010. This was provided on 2 February 2011 but the explanation was not accepted by the GIO and the insurer declined the claim by letter dated 21 February 2011. 59Notwithstanding, Ms Baker proceeded on 29 March 2011 to make an application to CARS for a special assessment, asking that the claim be accepted, and that a full and satisfactory explanation had been given. 60The GIO instructed Moray & Agnew to act for them and on 20 April 2011 that firm requested further and better particulars of the claim. Extensive replies to particulars were provided on 12 June 2011, and the CARS matter was set for preliminary conference on 16 June 2011. On 27 June Moray & Agnew requested further particulars which were answered by letter dated 30 June 2011. 61On 29 June 2011 the plaintiff advised his solicitor that he had been diagnosed with thyroid cancer. He immediately commenced treatment which continued into 2012. In the meantime, the insurer made a full denial of liability in its s 81 Notice on 11 July 2011 and a Certificate of Exemption was obtained from the Motor Accidents Authority on 22 July 2011; the CARS matter was closed. 62Ms Baker responded to further requests for particulars from Moray & Agnew. Whilst this was occurring, between June 2011 and January 2012, the plaintiff underwent surgery and further follow-up treatment for his thyroid cancer. He only gave instructions to Ms Baker to proceed with the claim in or about January 2012, once he had received a more favourable diagnosis for the outcome of his thyroid cancer. 63Ms Baker swore an affidavit which presented a detailed account of her action in the matter once she first heard of it from Peter and his father on or about 23 November 2010. Discussion and Findings 64The defendants say that the plaintiff has not provided a full and satisfactory explanation. I do not agree. The three people relevant to the matter have given evidence. They impressed me as honest people, giving honest explanations for what had occurred. 65The defendants said that when the plaintiff's father did not hear from his (then) solicitor in answer to his calls and letter, he assumed unreasonably, and without any apparent basis, that the plaintiff did not have a case to pursue. Mr Davis senior was criticized for not having followed the matter up with other solicitors. 66I do not think that the plaintiff's father's response was unreasonable. He gave his explanation for why he believed that there could be no case, and his solicitor's silence he reasonably took to be confirmatory of this view. In fact, neither the solicitor nor barrister engaged in the criminal proceedings mentioned it, thus tending to confirm again the view that Mr Davis senior held was correct. I do not think a reasonable man would see the matter differently, taking into account all the circumstances of the accident, not the least of which being that the plaintiff could not remember it. 67The plaintiff's father said that he had never made a claim on his car insurance for an accident. He was unaware of time limits and things of that nature. He was and is caring for his son. I do not think it unreasonable that he did not seek advice from other solicitors. The defendants cited Figliuzzi v Younan [2005] NSWCA 290 but it is distinguishable from the present case in that the plaintiff in that case had not turned her mind to whether she had a claim under the MACA. She merely assumed she did not. 68Both the plaintiff and his father gave clear and cogent reasons for their failure to act. The only assumption they made was with respect to the former solicitor not responding and as I have said, I do not consider that assumption to be unreasonable. 69The defendants argued that in any event, the plaintiff did not have a viable claim and that the grant of leave would be futile. 70The question of whether the case is viable is not mentioned in s 109; it was raised by the defendants in the context of general principles relating to the grant of leave. 71The defendants contended that since neither party could recall the accident, there could be no evidence that the application of the handbrake caused or contributed to the accident. 72This, said the defendants, was the plaintiff's best argument and it was bound to fail: not only could neither party recall the evidence, but there was also a suggestion that the Toyota Camry had the handbrake located in the driver's footwall, making it almost impossible to allege that the defendant could have interfered with it. 73The plaintiff said that it intends to rely on Thornton v Sweeney (2011) NSWCA at [113] where the court states the general principles of duty of care owed to a learner driver by a voluntary supervisor, and to Regulation 16 of the Road Transport (Drivers Licensing) Regulations 2008 which provides that: "a person accompanying a learner in a vehicle being driven by the learner on a road or road related area ...must: (a) supervise the learner with respect to the driving of the vehicle, and (b) take all reasonable precautions to prevent a contravention of the road transport legislation" 74Further, the plaintiff says that he has an arguable case against Samuel Dagg as the person who was supervising the plaintiff's driving; who should not have allowed the plaintiff to drive the car and to permit him to drive at a speed which exceeded 60 kilometres per hour and should not have allowed him to drive whilst he was intoxicated. 75Whilst I have concern about the prospects of success of the case conducted upon these lines, I am not prepared to find that it is futile or not arguable. There are two main reasons for this: firstly, on the facts, the first defendant was aware enough of his surroundings to ask someone else to drive the car and (as a result of the presence of hot food in the car) one or both of them were driving to a shop and purchasing food, thus the extent to which the first defendant was intoxicated is an open issue. The boys had known each other for a lengthy period. There was evidence that the group all knew of the status of each other's drivers' licences. 76The duty identified in Thornton v Sweeney might extend to a case where both parties were intoxicated, with appropriate allowance being made for contributory negligence. The cases cited by the defendant, such as Holt v Wynter (2000) 49 NSWLR 128 at 141 and 147, which consider whether or not to grant leave, suggest that there is an overriding obligation that there not be significant prejudice to the defendants and whether there can be a fair trial. 77Secondly, I am guided by the terms of s 109(3) of the MACA. Parliament had the opportunity to insert another condition of the grant of leave and it elected not to do so. I should not impose it in the present case. 78In terms of prejudice to the defendants, there were no witnesses to the accident and the parties themselves are not able to remember what happened. With the exception of one person at the party, no-one could provide probative and relevant evidence of how the parties came to be in the car and what had happened. Statements were taken by Police at the time of the investigation. The prejudice suffered by the defendants now, should leave be granted, is not significantly greater in my view than the prejudice or difficulties that it faced in the three years after the accident. 79I formally find that the plaintiff has provided a full and satisfactory explanation for his delay in making his claim and commencing proceedings. 80The parties agreed that the plaintiff's damages, if he was successful, would be greater than 25% of the maximum amount awardable under s 124 of the MACA. 81Accordingly I grant leave to the plaintiff to file his Statement of Claim. 82I dismiss the first defendant's Notice of Motion filed on 23 March 2012. 83Costs will be costs in the cause. 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: 12 March 2014