Explanation for Delay in Filing Motor Vehicle Compensation Claim Found Satisfactory

The District Court of NSW ruled that the claimant's explanation for the delay in filing a motor vehicle compensation claim was satisfactory under section 73 of the Motor Accidents Compensation Act 1999, as a reasonable person in the claimant's position would have experienced the same delay.

District Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] [2016] NSWDC 451 Hearing dates: 29 July 2016 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Dismiss the defendant's notice of motion. (2) Plaintiff pay the defendant's costs of the notice of motion, such costs not to be enforced prior to the conclusion of the present proceedings. (3) Note that the matter is listed for a pre-trial conference on 9 August 2016. Catchwords: TRAFFIC LAW AND TRANSPORT — traffic law — motor accident legislation — late claims – time limits - limitation period - expiration of time limit - delay in making claim for damages - full and satisfactory explanation for delay - reasonable person in position of claimant Legislation Cited: Motor Accidents Compensation Act 1999, s 66, s 72, s 73, s 85, s 85A Cases Cited: [NAME] v [NAME] [2013] NSWDC 294 [NAME] v State of New South Wales [2014] NSWDC 100 Ly v Mukdassi [2013] NSWDC 257 Category: Procedural and other rulings Parties: [NAME] (plaintiff) [NAME] (defendant) Representation: Counsel: [redacted] [NAME] (defendant)

Solicitors: [redacted] Sparke Helmore Lawyers (defendant) File Number(s): 2016/165248 Publication restriction: None

Judgment 1. [NAME] was injured in a motor vehicle accident on 1 June 2013, and received workers compensation benefits from shortly after the accident. He commenced motor vehicle compensation proceedings for damages on 30 May 2016. He did not notify the [NAME] of the claim within six months of the accident in accordance with the provision in s 72 of the Motor Accidents Compensation Act 1999 and provided no explanation for that failure until recently.

2. Section 73 of the Act allows a claim to be made outside the six‑month period if a full and satisfactory explanation for the delay in making the claim is provided. The [NAME] accepts that a full explanation has now been given, but denies that the explanation is satisfactory and has applied for dismissal of the claim on this ground.

3. Section 66(2) of the Act provides that: "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 parties accept that this application is concerned with the second limb of this test, namely "justified in experiencing the same delay", rather than the "failed to have complied with the duty" component of s 66(2) which might be thought to apply to those express duties elsewhere mentioned in Chapter 4 of the Act, such as in ss 85 and 85A.

2. The basis of the [NAME]'s submission of an unsatisfactory explanation for the delay rests upon the submitted knowledge of [NAME] and relies upon two facts in particular.

3. First, on 26 August 2013, some three months after the accident, [NAME] asked his treating general practitioner whether he could "make a motor vehicle claim" and was told that he could not, as that would be "double dipping".

4. Secondly, in October 2013, still within the six‑month period, [NAME] asked his workers compensation [NAME] case manager "about reporting the accident through my motor vehicle accident insurance", [1] and was told not to do so as he would lose his workers compensation payments.

5. The [NAME] relies upon these matters indicating that [NAME] believed or knew that he was entitled to claim and that a reasonable person in his position with those beliefs would not have failed to contact a lawyer about the claim. The [NAME] submitted that [NAME] was at least aware of his potential to make a claim by asking the questions of the doctor and the case manager. Further, on a third occasion, just after the expiry of the six‑month period, [NAME] asked another manager of the workers compensation [NAME] about whether he could "bring a claim through my motor vehicle insurance and whether I should engage a Solicitor", and he was advised against it as it would "only complicate things unnecessarily". [2] 6. [NAME] failed to see a lawyer until 26 March 2014, when he contacted [COMPANY], his former solicitors. [NAME] gave evidence that: "Prior to...25 September 2015, I did not know I was entitled to damages for the injuries I sustained on 1 June 2013...it was my belief that my rights were limited to workers compensation and possibly a total and permanent disablement benefit. I was also not aware prior to the conference on 25 September 2015 that I only had six months to lodge a Motor Accident Personal Injury Claim Form with the third party [NAME] of the motor vehicle with which I collided." [3]

1. In my view, the two instances of questions by [NAME] to the general practitioner and case manager, referred to by the [NAME], are ambiguous as to the state of knowledge of [NAME]. Without more, that ambiguity may have worked to the advantage of the [NAME] as I would not be inclined to infer matters in [NAME]'s favour if he could have given further evidence about them but declined to do so. But the further material, including the last quote, removes the ambiguity concerning [NAME]'s extent of knowledge about his entitlements and about the time limit.

2. Taken as a whole, I am satisfied that the evidence indicates that on three occasions, [NAME] had questions, he asked persons who were not lawyers but who might be expected to know more than he did about his entitlement, on each occasion he was advised against pursuing any possible entitlement, and he followed that advice.

3. As things transpired, when some treatment was declined by his workers compensation [NAME] in early 2014, [NAME] contacted his former solicitors to "ascertain what my legal rights were arising from the injuries I sustained on 1 June 2013 as a result of the motor vehicle accident". [4] The [NAME] submits I should not accept this account of the conversation with his former solicitors as it conflicts with the heading in an email received from the solicitors at the time, a heading which refers to "Your superannuation enquiry". I do not accept this. Without more, this heading represents a categorisation given by the solicitor to the nature of the inquiry or potential claim, rather than the content of the inquiry by [NAME].

4. From March 2014 until December 2015, [NAME] was advised by his former solicitors. The evidence indicates that at no time was he advised by them to make, or about the possibility of making, a motor vehicle claim. By mid‑2015, [NAME] was dissatisfied with his former solicitors, and in late September 2015 he consulted his present lawyers. He then received advice about his entitlements which led to the present proceedings.

5. In my view, a reasonable person might be expected to ask other persons who have a greater familiarity with compensation claims, such as, potentially, doctors or insurance managers, about the possibility of a claim and act in accordance with the advice received, even if it is unqualified and might be incorrect. A person in [NAME]'s position with no belief of a six‑month time limit and having been warned against such a claim might nevertheless be expected eventually to contact a lawyer, although not necessarily within the six-month period. 6. [NAME] did so, contacting [COMPANY] approximately nine months after the accident. Bearing in mind [NAME]'s belief and the limited nature of the advice he received from his former solicitors, a reasonable person in his position with his beliefs would, in my view, be justified in not making a claim until he received the advice he did late in 2015 about his entitlement. [5]

7. No complaint is raised about the period between the time [NAME] was advised about his entitlements and the commencement of proceedings.

8. The [NAME] also relied on the decision of [NAME] v State of New South Wales. [6] That decision involved a much longer delay by a person who had a greater familiarity with legal matters, who did not seek or obtain any legal advice, and had other circumstances not present here. I do not regard it as analogous.

9.

Accordingly, I find that the explanation given by [NAME] is satisfactory and I dismiss the applicant's notice of motion.

10. As to the question of costs, the [NAME] relies on the late provision of an explanation as a basis for an order for costs of the application. [NAME] does not oppose such an order, so long as the costs are not payable until the conclusion of the proceedings, a condition accepted by the [NAME].

11. Therefore, the costs order shall be that the plaintiff pay the [NAME]'s costs of the notice of motion, such costs not to be enforced prior to the conclusion of the proceedings.

12.

Accordingly, the orders of the Court are:

1. Dismiss the defendant's notice of motion.

2. Plaintiff pay the defendant's costs of the notice of motion, such costs not to be enforced prior to the conclusion of the present proceedings.

3. Note that the matter is listed for a pre-trial conference on 9 August 2016.

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Endnotes 1. Affidavit of [NAME] filed 26/7/16 at [17].

2. Affidavit of [NAME] filed 26/7/16 at [23].

3. Affidavit of [NAME] filed 26/7/16 at [44].

4. Affidavit of [NAME] filed 26/7/16 at [28].

5. See Ly v Mukdassi [2013] NSWDC 257 at [30] and cf [NAME] v [NAME] [2013] NSWDC 294 at [31]. 6. [2014] NSWDC 100. 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: 22 August 2019