District Court New South Wales Medium Neutral Citation: Philp v Nominal Defendant [2017] NSWDC 223 Hearing dates: 28 July 2017 Date of orders: 25 August 2017 Decision date: 25 August 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the defendant; 2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act is stood over to be determined at the ultimate trial of the proceedings; 3. The defendant's notice of motion filed on 26 April 2017 is dismissed; 4. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered; 5. Liberty to apply on 7 days' notice if further or other orders are required. Catchwords: LIMITATION OF ACTIONS – plaintiff is entitled to a grant of leave to continue the present proceedings – whether the proceedings should be dismissed on account of defendant's claim of unsatisfactory explanation for delay; PRACTICE AND PROCEDURE – issue of due inquiry and search to be determined at the trial Legislation Cited: Motor Accidents Compensation Act 1999, s 34, s 66, s 72, s 73, s 109 Workers' Compensation Act 1987 Cases Cited: Figliuzzi v Yonan [2005] NSWCA 290 Nominal Defendant v Browne [2013] NSWCA 197 Smith v Grant [2006] NSWCA 244 Category: Principal judgment Parties: Gail Philp (Plaintiff) Nominal Defendant (Defendant) Representation: Counsel: Mr M Cleary (Plaintiff) Ms J Gumbert (Defendant) Solicitors: Law Partners (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2017/65617 Publication restriction: None JUDGMENT Notices of motion 1. These two notices of motion arise for determination in the context of a claim for damages for personal injury arising from a motor vehicle accident which occurred on 20 October 2009, and to which the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"], apply. 2. The first motion, filed by the defendant on 26 April 2017, pursuant to s 34, s 72, s 73 and s 109 of that Act, respectively, seeks a dismissal of the plaintiff's present proceedings for alleged failure by the plaintiff to comply with the statutory requirement of due inquiry and search, and an alleged failure by the plaintiff to comply with timing and delay explanation requirements of those statutory provisions. 3. The second motion, filed by the plaintiff, pursuant to leave granted at the commencement of the hearing of the first motion on 28 July 2017, seeks, pursuant to s 109 of that Act, leave for the plaintiff to maintain the present proceedings. Evidence on these applications 1. The defendant relied upon the affidavit of Ms Anne-Maree Williams, sworn on 26 April 2017, and also on the voluminous affidavit of the plaintiff's solicitor, Michelle Cheong sworn on 14 June 2017. Those affidavits attached relevant documents, including an application for workers' compensation in relation to the subject accident and signed by the plaintiff on 21 October 2009; the plaintiff's CTP personal injury claim form signed on 20 November 2012 and apparently received by the insurer on 10 January 2013; a statutory declaration from the plaintiff, dated 12 August 2015, and related correspondence. Those affidavits contained some overlapping materials. 2. The plaintiff also relied upon her own affidavit sworn on 14 June 2017. The plaintiff was cross-examined on the content of that affidavit, including as to the circumstances of the accident, her post-accident impairment for work, her understanding of the difference between her workers' compensation rights, rights arising under the CTP insurance scheme, the circumstances of the plaintiff having left the administrative pursuit of her CTP claim to her solicitors, and the reasons for the previous delay that was incurred in pursuing her claim. No adverse credit issues arose from that cross-examination. 3. Judgment on the notices of motion was reserved on 28 July 2017 in order to await the transcript, which became available for review on 21 August 2017. Issues 1. The issues calling for decision in these motions are: whether the plaintiff has established the requirement of due inquiry and search as provided by s 34 of the MAC Act; whether, pursuant to s 66, s 72 and s 73 of the MAC Act, the plaintiff has provided a full and satisfactory explanation for the delay in commencing her proceedings; and whether, pursuant to s 109 of the MAC Act, the plaintiff is entitled to an order granting her leave to maintain the proceedings. The outcome of the consideration of those issues is dependent upon the exercise of discretion. The parties have agreed that no relevant questions of prejudice arise in that consideration. Facts 1. The plaintiff is aged 66 years. On 20 October 2009, in the subject accident, she sustained debilitating injuries, mainly of an orthopaedic nature, in the course of her employment as a bus driver. At the time of the accident, the bus she was driving was involved in a collision with an unidentified truck which had unexpectedly changed lanes in traffic on the Sydney Harbour Bridge. That truck did not stop after the collision. In the circumstances, the plaintiff was unable to obtain complete particulars of the vehicle, or of its driver. 2. The plaintiff is a plain-speaking and relatively unsophisticated person. I intend no disrespect to her by referring to her in those terms. That observation is a matter that is relevant to the consideration of whether her explanations for the delays incurred in this case were full and satisfactory. 3. In 2005, the plaintiff had the experience of making a previous workers' compensation claim. She understood that the subject accident to which the present claim relates also occurred in the course of her employment, and that as a result, she had workers' compensation rights. Consistent with that belief on 21 October 2009 she signed a workers' compensation claim form in relation to her injuries sustained in the subject accident. 4. On 27 October 2009, the plaintiff attended at a police station, to report the subject accident. She did so in order to obtain a Police Events number to enable her to pursue her claim for workers' compensation. With the assistance of her employer, she then proceeded with a claim on her employer's workers' compensation insurer in respect of the subject accident. I accept that in those events, she was not informed and did not understand that she may have claiming rights under the CTP insurance scheme. 5. The plaintiff's claim for workers' compensation was accepted by the insurer, and consequently, she received her entitlements to benefits and payment for treatment costs under the Workers' Compensation Act 1987 ["WC Act"] in respect of the injures she sustained in the subject accident. 6. The due time for the plaintiff to have lodged her CTP personal injury claim form in relation to the subject accident was 20 April 2010, namely within 6 months of that accident: s 72 of the MAC Act. 7. The plaintiff had never had a previous occasion to lodge a CTP insurance claim. The plaintiff stated that in the course of her work as a bus driver, she had held what she now understands to have been the mistaken belief that if she were to become injured whilst driving a bus in the course of her employment, her right to compensation for such injuries arose under the workers' compensation scheme that prevailed, and she was unaware of the prevailing provisions of the CTP insurance scheme which may have given rise to an alternative right to make a CTP insurance claim. 8. The plaintiff's view to the above effect was not shaken in cross-examination. In her circumstances, she being a relatively unsophisticated person, I consider that it was not an inherently improbable view for her to have held in those circumstances. The question that arises is whether a reasonable person in her position would have held views to that effect in her circumstances. 9. Consistent with the plaintiff's cited view, having initiated the workers' compensation claim process, thereafter, she made no attempts at pursuing a CTP insurance claim until she saw her solicitors in November 2012. 10. In that context, from October 2009, the plaintiff remained under the care of her treating general practitioner for her accident-related problems, and she followed through with relevant referrals and related treatment recommendations, including for surgery, and other intensive therapies for those problems. All of those consultations and treatments continued to be covered by the workers' compensation insurer, including for the plaintiff's ongoing periods of unfitness for work. 11. By 20 October 2012, three years had passed since the time of the subject accident. In that time, the plaintiff had not known that she needed the leave of the court to bring what was by this time, a late CTP insurance claim: s 109 of the MAC Act. 12. On 8 November 2012, the plaintiff was advised by a treating doctor that the effect of her injuries from the subject accident meant that she would be unable to return to her work as a bus driver. This news came as a great shock to her. This fact, together with an evolving feeling of frustration on her part over delays she had encountered in relation to the workers' compensation insurer taking time to approve recommended treatments, led her to seek legal advice from her present solicitors to enforce some timely decisions by the insurer in that regard. 13. On 14 November 2012, or very shortly afterwards, when the plaintiff consulted her present solicitors, she was first made aware of the difference between workers' compensation entitlements and CTP entitlements: Plaintiff's affidavit 14 June 2017, par 26; plaintiff's statutory declaration 12 August 2015, par 84 – par 87. That evidence was not challenged. 14. Until 14 November 2012, the plaintiff's belief was that she was only entitled to payments for workers' compensation. As soon as she became aware, through her solicitors, that in order to pursue a CTP damages claim, she needed to explain the delay in submitting her CTP insurance claim, she then relied upon her solicitors to professionally process that claim, and to advance her explanation to the CTP insurer for the delay that had hitherto occurred in making that claim. 15. In the course of those events, on 22 November 2012, the plaintiff attended upon her treating doctor for the completion of the medical certificate which formed part of the CTP claim form. Some short but immaterial delays then occurred, during which, first, original documents needed to be substituted for copies, and secondly, attempts were made at trying to obtain more complete details and particulars of the vehicle in question, which had apparent interstate registration, and thirdly, whilst attempts at due inquiry and search were being pursued. 16. In those events, the plaintiff's personal injury claim form and the accompanying medical certificate were served on the Nominal Defendant on 10 January 2013. Since that time, the progress of the matter has remained in the hands of the same solicitors whom the plaintiff had engaged in November 2012. 17. In the period that followed, the CTP insurer for the Nominal Defendant has continued to reject the plaintiff's explanations which were advanced in relation to the earlier delay in pursuing her claim. In that period, absent her own knowledge or experience in relation to such matters, the plaintiff was entirely reliant upon her solicitors to advance her explanation for the delay incurred in that time. 18. In those circumstances, the plaintiff was not made aware of any urgency of that process, and she left all the aspects of the matter in the hands of her solicitors. 19. This eventually resulted in the presentation of the plaintiff's statutory declaration dated 12 August 2015, in which she sought to explain the delay. This explanation was rejected by the defendant's insurer in October 2015. Despite further interchanges and representations between the solicitors for the respective parties during 2015 and 2016, the explanation proffered by the plaintiff for the delay in making her claim remained unchanged, and, the defendant's insurer remained dissatisfied with the plaintiff's explanation for the delay. 20. As is evidenced in the voluminous material annexed to the affidavit of Ms Cheong sworn on 14 June 2017, since the time they were consulted by the plaintiff, the solicitors for the plaintiff had been substantially occupied with gathering medical information and reports, and in corresponding with the defendant's insurer in relation to the present claim. 21. A significant obstacle to progressing the plaintiff's claim was an 8 month delay experienced by the plaintiff's solicitor in obtaining a release of copies of relevant documents from the workers' compensation insurer, QBE (Australia) Ltd. The perusal of that material was necessarily relevant to assembling the detail of the plaintiff's explanation for delay: Affidavit of Ms Cheong, sworn 14 June 2017, par 35 – par 40. 22. The affidavit of Ms Cheong serves to explain and to document the labyrinthine chronology of activity undertaken by the plaintiff's solicitor in advancing the plaintiff's claim by arranging medical examinations, corresponding with the CTP insurer and the workers' compensation insurer, dealing with the required Motor Accidents Authority forms and procedures, including the Medical Assessment Service, and the related review procedures. There can be no procedural criticism of the plaintiff's solicitor in relation to that course of events, which took time, and which was productive of further delays. 23. On 12 January 2017, the defendant obtained from the State Insurance Regulatory Authority, a CARS Certificate of Exemption. Consequently, on 22 February 2017, the plaintiff's statement of claim was filed. Legislation 1. Section 34 of the MAC Act provides that in a case such as this, where the identity of the vehicle or the driver of the vehicle at fault cannot be established, a claim for damages cannot be maintained against the Nominal Defendant unless due inquiry and search has been made to seek to establish the identity of the motor vehicle concerned. That section does not require the question of due inquiry and search to be determined in advance of the trial if contested by the Nominal Defendant. 2. Section 72(1) of the MAC Act provides that a claim of this kind must be made within 6 months of the date of the accident by giving notice to the insurer. 3. Section 73 of the MAC Act provides that a late claim (made more than 6 months after the date of the accident) may be made if the claimant provides a full and satisfactory explanation for the delay incurred in making the claim. A court must dismiss proceedings commenced in respect of a late claim absent a full and satisfactory explanation for the delay in making the claim. 4. Section 66(2) of the MAC Act provides that the reference in s 73 of the Act to a full and satisfactory explanation by a claimant for a delay is a reference to a full account of the conduct of the claimant, including the actions, knowledge or belief of the claimant, from the date of the accident until the date the explanation is provided. In the present context, an explanation of that kind is not to be considered as being either full or satisfactory unless a reasonable person in the position of the claimant would have experienced the same delay which is the subject of explanation. This is a factual question to be determined in this case. 5. Section 109 of the MAC Act provides that a court may grant leave to continue an action commenced more than three years after an accident provided the claimant provides the court with a full and satisfactory explanation for the delay, and provided a defined damages threshold is met by the claimant. The defendant's concession obviates the need to examine that threshold question. Principles to be applied 1. Where it becomes relevant to do so, reference will be made to the authorities which interpret and explain the above legislative provisions: Figliuzzi v Yonan [2005] NSWCA 290; Nominal Defendant v Browne [2013] NSWCA 197; Smith v Grant [2006] NSWCA 244. 2. I now turn to a consideration of the issues calling for decision. Due inquiry and search 1. In my view, the question of whether or not the plaintiff has complied with the obligation of due inquiry and search, a condition precedent to this claim being maintainable, is a discrete issue that must be reserved for the trial. This is so particularly as it involves an assessment of the liability evidence as a whole. 2. Absent the consent of the parties, or absent an order of the court permitting the separate determination of the question of due inquiry and search, s 34 of the MAC Act does not require this issue to be determined in advance of the trial of the substantive proceedings. 3. I therefore consider that question, which also involves a consideration of matters to do with credit, should be reserved and stood over to be determined at the trial. The question of due inquiry and search therefore plays no part in the determination of the present notices of motion, other than perhaps some possible impact on the issue of costs. Consideration of relevant delays requiring a full and satisfactory explanation 1. In the course of submissions, the parameters for the consideration of the issue of delay became narrowed. The defendant submitted that the relevant delays requiring explanation were first, the period between 29 January 2012 and 12 August 2015, and secondly, the period between 2 August 2016 and 2 March 2017. Delay between 29 January 2012 and 12 August 2015 1. The consideration of the plaintiff's explanation for the delays encountered in this case must be that of a reasonable person in her position at the relevant time, and not a hypercritical analysis driven by considerations of hindsight. The required consideration must take into account the fact that the plaintiff is a relatively unsophisticated person who at the time did not have specific knowledge of the legislative requirements which govern the time constraints within which claims such as this are required to proceed. 2. A satisfactory explanation is commonly understood to be one that is adequate, and which leaves no room for complaint. 3. In that context, the plaintiff's understanding of the basis upon which she could make a claim for injuries received as a driver in the course of her employment is a relevant consideration. 4. The plaintiff said, and I accept, that until she sought legal advice in November 2012, although she was generally aware of the existence of a CTP scheme for third party compensation, she thought that she was only entitled to rights for compensation for her injuries within the workers' compensation scheme because the accident occurred in the course of her employment. I accept what she described as the nature and extent of her knowledge and experience in relation to such matters at the relevant time. 5. In the period from the date of the subject accident until when she consulted her solicitors, the plaintiff undertook and attended numerous consultations with health care professionals, including doctors and physiotherapists. It is significant that during that time, none of those medical and allied persons advised her that she might have a CTP insurance claim. There would have been no reason for those persons to have taken such a step, given that at the time, the cost of the plaintiff's treatment was being covered by the workers' compensation insurer. 6. In seeking to resist the proposition that the plaintiff had given a full and satisfactory explanation for the delays incurred, the defendant relied upon the decision in Figliuzzi v Yonan [2005] NSWCA 290. In articulating that reliance, the defendant pointed to some similarities between the facts of that case and the plaintiff's case, namely that the plaintiff's injuries were the subject of workers' compensation rights, and there was a long delay experienced, namely in that case 5 years, and in the present case, a little over 3 years, and that in Figliuzzi, at [103] it was observed that the expectation of a reasonable person in such a case would not have been justified in experiencing such a delay. 7. With due respect to that submission, I consider the decision in Figliuzzi distinguishable from the circumstances of the plaintiff's case. This is because in Figliuzzi, at [2], that plaintiff, who had worked in the legal system, and could be taken to have some legal knowledge and access to legal advice, only became aware of her mistaken belief as to her compensation rights after she was advised to seek legal advice because she felt her injuries were not getting better. In contrast, here, the plaintiff only sought legal advice in relation to seeking enforcement of the workers' compensation insurer's obligation to pay for her treatment in a timely manner. 8. Accordingly, the decision in Figliuzzi should be seen as being an own facts case, so that where, at [98] – [99], criticisms were made of the plaintiff in that case for not seeking out legal advice at an earlier point in time, those statements cannot be seen to have universal application. Whereas in Figliuzzi, it was determined at [135], that the plaintiff's "bush lawyer" approach in not seeking out legal advice was inappropriate, and where at [135], it was observed that "almost every worker" could be taken to be aware that there could be both workers' compensation and common law rights available to be pursued, the qualification of "almost every worker" indicates that those remarks should not be taken to be of universal application. 9. I find that were it not for the fact that the plaintiff needed to pursue legal advice to seek to enforce the obligation of QBE (Australia) Ltd to pay for her treatment under the workers' compensation scheme, the question of a possible need for the plaintiff to seek legal advice would not have arisen as her treatment costs and other benefit entitlements under the WC Act were being paid, and a reasonable person in the position of the plaintiff would have experienced the same delay as that encountered by the plaintiff. 10. The defendant attacked the fullness of the plaintiff's explanation by drawing upon remarks in Nominal Defendant v Browne [2013] NSWCA 197, at [21] – [25], where it was stated that an explanation may not be full if it does not provide some detail of the instructions given to, and the advice received from, solicitors acting for the injured person, noting that in the present case, there were no advices or file notes tendered. 11. In my view, the present plaintiff's case is different to the situation described in Nominal Defendant v Browne, where at [22] – [23], the plaintiff could not remember what had been said to her, and therefore, the explanation that was given in that case, was not a "full" explanation. In the present case, it is tolerably clear from the chronology within the documentation annexed to the affidavits, that the plaintiff was advised to pursue a CTP insurance claim, and that the course of conduct undertaken by her solicitors was consistent with that position. It was therefore unnecessary to tender advices and file notes to that effect in this case. The chronology of the events indicates the explanation was both "full" and "satisfactory". Nothing more is required. 12. Accordingly, the defendant's criticisms of the absence of supporting material from the plaintiff's solicitor fall away. There is no reasonable basis in this case for the defendant to call into question the conduct or the actions of the plaintiff's solicitor so as to undermine the fullness or the satisfactory nature of the explanations for the delays incurred. This is particularly so as the solicitor for the plaintiff was not required for cross-examination on her affidavit: Smith v Grant [2006] NSWCA 244, at [74]. 13. The plaintiff addressed the need to explain why she had not put in her CTP claim within 6 months of the accident by stating that she could not explain that which she did not know about. The logic of that explanation is compelling. 14. In those circumstances, until the plaintiff had a reason to seek legal advice about seeking to enforce timely approval of payment for her accident-related treatment needs, a reasonable person in her position, with her stated limited understanding of her rights, would have had no reason to seek advice of that kind at an earlier point in time. 15. In the period between 14 November 2012 and 12 August 2015, the annexures to Ms Cheong's affidavit sworn on 14 June 2017, and the chronology comprising MFI "1", which extracts a series of sequential dates on which the plaintiff's solicitors took professional steps to accumulate documents, materials, and reports to position the plaintiff to be able to sign a statutory declaration, sets out a full and satisfactory explanation for the delay that had been experienced by the plaintiff in presenting her claim: Smith v Grant [2006] NSWCA 244. 16. I find that in that period from 14 November 2012, which culminated in the plaintiff signing and providing her statutory declaration on 12 August 2015, a reasonable person in the position of the plaintiff would have experienced the same delay and would have been justified in following the same course and sequence of delay as the plaintiff has in fact experienced, as summarised in these reasons: s 66(2); s 73(1); s 109(3)(a) of the MAC Act. Delay between 2 August 2016 and 2 March 2017 1. The next period of delay that requires a full and satisfactory explanation is in relation to the period 2 August 2016 and 2 March 2017. That confined period is as a result of a concession made by the defendant on 1 August 2016. 2. That period must be further confined to the period 2 August 2016 to 12 January 2017, which was the date on which the plaintiff was granted a CARS Certificate of Exemption: s 109(2) of the MAC Act. Thereafter, the plaintiff's statement of claim was then filed relatively promptly, on 22 February 2017. 3. In that time, the chronology of events shows that time was taken up with the insurer for the defendant maintaining its position that the plaintiff's explanation was neither full nor satisfactory. The plaintiff's circumstances, and her explanation had not materially changed, and, in conformity with any earlier stated findings, the plaintiff's explanation remained both full and satisfactory. In that period, time was taken up seeking exemption from the CARS process. The consequential delay in this period was not material. Whether leave should be given for the proceedings to be maintained 1. For the purposes of the plaintiff's application for leave to proceed with her claim, the defendant accepts that the plaintiff has satisfied the preliminary damages threshold requirement of demonstrating that her claim for damages equates to at least 25 per cent of the maximum damages assessable, as is required by s 109(3)(b) of the MAC Act. 2. Given my acceptance of the fullness and the satisfactory nature of the plaintiff's explanations for the delay incurred in making her claim and given the defendant's quantum concession, and absent any material prejudice to the defendant, I consider that there is no sound reason why the plaintiff should not be granted leave to continue the present proceedings: s 109(3)(a) of the MAC Act. Costs 1. The plaintiff has succeeded on the substantive matters calling for decision in these motions. She should therefore have her costs of the two respective motions paid by the defendant. Orders 1. I make the following orders: 1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff is granted leave to continue the present proceedings against the Nominal Defendant; 2. The question of whether there has been due inquiry and search as required by s 34 of the Motor Accidents Compensation Act 1999, is stood over to be determined at the ultimate trial of the proceedings; 3. The defendant's notice of motion filed on 26 April 2017 is dismissed; 4. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered; 5. Liberty to apply on 7 days' notice if further or other orders are required. ********** 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: 25 August 2017