Codazzi v Bangura [2017] NSWSC 1082

Supreme Court New South Wales

Medium Neutral Citation: Codazzi v Bangura [2017] NSWSC 1082 Hearing dates: 16 August 2017 Date of orders: 16 August 2017 Decision date: 16 August 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. Leave is granted to the Plaintiff nunc pro tunc to commence these proceedings pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) by Statement of Claim filed 18 August 2016, as sought in the Motion filed 3 February 2017.

2. Costs of the Motion are to be costs in the cause.

3. Defence to be filed within 14 days.

4. Listed before the Registrar at 9:00am on 29 August 2017. Catchwords: LIMITATION OF ACTIONS – motor accidents – action commenced more than four years after accident – whether a full and satisfactory explanation for delay provided – defendant consents to leave being granted – whether damages are likely to equal or exceed 25% of non-economic loss damages – leave granted Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Salido v Nominal Defendant (1993) 32 NSWLR 524 Category: Procedural and other rulings Parties: Andrea Codazzi (Plaintiff) Alieu Bangura (Defendant) Representation: Counsel: S Holmes (Plaintiff) B Ferguson (Defendant)

Solicitors: Beilby Poulden Costello (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2016/248662

Judgment 1. The plaintiff was injured in a motor vehicle accident on 29 December 2011. He was riding his motor cycle east in Bridge Street, Sydney after leaving his workplace at the Shangri-La Hotel where he worked as a chef. At the intersection of Loftus Street a taxi driven by the defendant turned right out of Bridge Street to proceed into Loftus Street. The plaintiff was unable to avoid an accident because of his close proximity to the intersection. He was thrown off his motorcycle suffering serious injuries which ultimately resulted in the amputation of his left leg below the knee. He also fractured his left wrist. 2. These proceedings were only commenced on 18 August 2016, well beyond the three year limitation period provided in s 109(1) of the Motor Accidents Compensation Act 1999 (NSW). Proceedings may be commenced more than three years after the date of the motor accident with the leave of the Court. Sub-section (3) provides: (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident. 1. Section 66(2) of the Act defines a full and satisfactory explanation as follows: In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. 1. The plaintiff received worker's compensation payments during his absences from work. He returned to work part-time on 17 April 2012 and thereafter his hours increased until he was back working full-time. 2. In October 2013 he was advised by the worker's compensation insurer that he had an entitlement to bring a lump sum claim for compensation and that they would be referring him to a doctor to assess his whole person impairment. He attended the medical assessment and was assessed as having 31% whole person impairment. He thereafter attended, with his partner, a meeting with the worker's compensation insurer. He was told he was entitled to payment of medical expenses for the remainder of his life and for lost wages whilst he lived in Australia. He accepted the whole person impairment lump sum payment based on the 31% whole person impairment. 3. The plaintiff says that the insurer's legal counsel told him that he could bring a claim under the compulsory third party policy of the taxi driver who was at fault for the accident. He said he remembers the lawyer saying that he had six years to bring the claim. His partner confirms that. 4. Shortly thereafter he and his partner moved to Canada. 5. In November 2014 he received an email from the case manager at the worker's compensation insurer about a recovery action that that insurer was bringing against the taxi driver's CTP insurer. The following day on 1 December 2014 he received an email from the lawyer at the worker's compensation insurer recommending that the plaintiff retain his present solicitors and seek advice from them. Three days later he rang and spoke with Mr Donald Poulden from Beilby Poulden Costello and asked him to act on his behalf in relation to a claim against the taxi driver's insurer. Mr Poulden gave him certain advice in relation to the need to lodge a claim form, and the time limitations involved in relation to that claim form and concerning the bringing of proceedings. 6. Mr Poulden's affidavit in support of the present motion details the course of events from the time of his retainer up to the filing of the present Notice of Motion seeking leave under s 109. The affidavit details, amongst other things, the correspondence with the CTP insurer's solicitors, Curwoods Lawyers, that resulted in the CTP insurer losing the right to reject the late claim pursuant to s 73 of the Act and the agreement of the CTP insurer to an exemption from the CARS assessment process. 7. A notice under s 81 of the Act was served by Curwoods and shortly after the exemption from assessment was notified the present Statement of Claim was filed on 18 August 2016. The s 81 notice was the necessary pre-condition in this case for the exemption to be obtained: s 92(1) and the Motor Accident Claims Assessment Guidelines. Proceedings could not be commenced until the exemption had been granted: s 108(1) of the Act. 8. Initially, Curwoods Lawyers and their client applied by motion filed 14 December 2016 to have the proceedings dismissed on the basis that they had been commenced outside the three year period. However, on 7 August 2017 the parties agreed to dismiss the Defendant's Notice of Motion with no order as to costs leaving only for determination the plaintiff's motion for an extension of time. The Defendant consents to leave being given if the Court is satisfied the requirements in s 109 have been met. 9. I am satisfied from reading the affidavits of the plaintiff and Mr Poulden that a full and satisfactory explanation has been provided for the delay in commencing the proceedings. I note in that regard that the plaintiff and his partner moved to live in Canada in January 2014 until the middle of 2015 when they moved to Perth, Western Australia. 10. I am satisfied that the plaintiff was unaware that he had a right to bring the present proceedings until he was advised by the worker's compensation insurer to that effect when he settled his worker's compensation claim. At that time he believed he had six years to bring such a claim. When he was advised the following year that he ought to contact the present solicitors because of the recovery claim that was likely to involve his co-operation and assistance, he instructed them to make the claim. 11. The affidavit of Mr Poulden shows that he has acted on behalf of the Plaintiff with all due expedition. 12. Although the present Notice of Motion should have been filed at or about the same time as the Statement of Claim that has not impeded the progress of the proceedings. I consider that any explanation required is for the period up to the date of filing the Statement of Claim on 18 August 2016. That has been provided, and it is a full and satisfactory one. 13. The second requirement is that the total damages of all kinds likely to be awarded to the plaintiff if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss. At the date of the accident the maximum amount of damages for non-economic loss was $450,000. Accordingly, the money threshold is $112,500. 14. I note that the Plaintiff has had his left leg amputated below the knee. I note that he has been assessed for workers compensation purposes as 31% whole person impairment and has received a lump sum benefit. His workers compensation payments to 9 May 2014 total $210,521.70. In those circumstances any damages recoverable are likely to be not less than $112,500 even allowing for a reduction for contributory negligence. 15. A discretionary consideration is whether there is any forensic disadvantage to a defendant resulting from the delay: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532. In the present matter, as noted earlier, the Defendant does not oppose leave being granted. In any event, where a recovery action has been on foot against the Defendant by the workers compensation insurer since well before the present proceedings were commenced it is difficult to see what forensic disadvantage there could be to the Defendant. 16. Accordingly, leave is granted to the Plaintiff nunc pro tunc to commence these proceedings. The costs of the motion are to be costs in the cause.