Manderson v Ellis (by his Tutor) [2002] NSWCA 289 (30 August 2002)

Last Updated: 10 September 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Manderson v Ellis (by his Tutor) [2002] NSWCA 289

FILE NUMBER(S):

40840/01

HEARING DATE(S): 8 August 2002

JUDGMENT DATE: 30/08/2002

PARTIES:

Desmond MANDERSON (Appellant)

Arthur ELLIS (Respondent)

JUDGMENT OF: Santow JA Davies AJA McClellan J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2607/01

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL:

D F Jackson, QC/ J J Ryan (Appellant)

S Norton, SC/ S Piedade (Respondent)

SOLICITORS:

Sparke Helmore (Appellant)

Doherty & Partners (Respondent)

CATCHWORDS:

LIMITATION OF ACTIONS - motor vehicle accidents - Full and satisfactory explanation for the delay - Whether by claimant or persons acting on behalf - provision of full details - Denial of liability - Whether proceedings can be commenced notwithstanding the failure to provide full details.

LEGISLATION CITED:

District Court Rules Pt 9 r27; Pt 45

Motor Accidents Act 1988 (NSW); s3; s40; s40(2); s43; s43(2); s43(4); s43A(2); s43A(4); s43A(6)(c)(i); s43A(7); s50A; s50A(d); s52; s52(1); s52(1A); s52(1A)(b); s52(2); s52(2)(a); s52(2)(c); s52(3); s72; s79; s79A;

Supreme Court Rules Pt 63

DECISION:

Orders

(1) That the appeal be allowed and the judgment of Patten DCJ set aside

(2) That the Statement of Claim filed in the District Court be dismissed

(3) That the Respondent pay the costs of the Appellant on the appeal

(4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but make no order as to costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40840/01

DC 2607/01

SANTOW JA

DAVIES AJA

McCLELLAN AJA

30 AUGUST 2002

Desmond MANDERSON -v- Arthur R ELLIS (by his Tutor)

HEADNOTE

Facts:

Mr Ellis (the Respondent) had been injured after being struck by a motor vehicle driven by Mr Manderson (the Appellant) on the evening of 1 April 1998. Mr Ellis suffered numerous injuries, the most significant of which were brain damage, a delusional disorder and post-traumatic epilepsy. It was accepted that the injuries from the accident left him disabled.

Mr Ellis' sister contacted solicitors on his behalf and retained them in relation to the matter within 6 months of the accident. The sister later became the tutor to Mr Ellis in the court proceedings. The solicitors failed to commence the claim within 6 months of the accident. Rather the claim was commenced some 18 months after the accident, making the claim a deemed late claim under the Motor Accidents Act 1988 ("the Act"). Second, those acting for Mr Ellis had not given full details specifically of the claim, including the claims eventually made in relation to domestic care, to Mr Manderson or his insurer. The insurer had rejected the explanation and denied liability in relation to the claim.

Pursuant to s43A, a claimant is required to give a full and satisfactory explanation for the delay in notifying the defendant of the claim. Second, the Act specified that a claimant could not commence proceedings in a court unless 90 days had elapsed since full details of the claim had been provided to the defendant and his insurer.

Held:

Full and satisfactory explanation of delay

Per Santow JA:

1. The full and satisfactory explanation will in practice usually come from those who are in charge of the claimant's affairs and in particular the conduct of the relevant proceedings. A disabled person could hardly be expected to supervise, oversee or even be aware of actions taken by others on his or her behalf.

2. The completeness of the explanation relates to the claimant's own state of awareness and that of those who are in charge of his or her application without attributing to the claimant information of which the claimant could not be expected to be aware, but which was otherwise known to his or her dilatory solicitor.

Per Davies AJA with McClellan AJA agreeing:

3. The statement by Mr Ellis' solicitor explaining the delay was inadequate and unsatisfactory. In assessing whether a claimant has a full and satisfactory explanation it is necessary to consider what weight should be given to the solicitor's negligence. In the present case the court could not be satisfied that Mr Ellis did not have a full and satisfactory explanation for the delay.

Failure to supply full details of claim

Per Santow JA with Davies AJA and McClellan AJA agreeing:

4. s52(2) of the Act which permits proceedings to be commenced within 90 days of making the claim in certain circumstances does not override the requirement at s50A that a claimant is to provide full details of the claim to the defendant.

5. The sanction against failure to provide full details, being the inability to commence court proceedings, works in support of the objects of the section to avoid court proceedings and encourage settlement. The denial of liability by an insurer can only be predicated on the basis of what was known to the insurer at the time.

Orders:

(1) That the appeal be allowed and the judgment of Patten DCJ set aside.

(2) That the Statement of Claim filed in the District Court be dismissed.

(3) That the Respondent pay the costs of the Appellant on the appeal.

(4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but make no order as to costs of the appeal.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40840/01

DC 2607/01

SANTOW JA

DAVIES AJA

McCLELLAN AJA

30 AUGUST 2002

Desmond MANDERSON -v- Arthur R ELLIS (by his Tutor)

Judgment

1 SANTOW JA:

INTRODUCTION

2 There are only two issues in this appeal which concerns a motor car accident. They are whether the Trial Judge erred in declining to dismiss the action of the Respondent on either of the grounds below:

(a) that dismissal was required (contrary to the Trial Judge's determination) by s43A(6)(c)(i) of the Motor Accidents Act 1988 (NSW) (the "Act"). This is on the asserted basis that s43A(7) required the court to dismiss the proceedings, being in respect of a "late claim" prohibited from proceeding, as the court should have been satisfied that the Respondent as claimant (to use the statutory term) does not have a full and satisfactory explanation for his delay in making his claim, in conformity with s43A(7) of the Act and the definition of "a full and satisfactory explanation" in s40(2); or

(b) that dismissal was required (contrary to the Trial Judge's determination) by reason of non-compliance with s50A(d) of the Act. This is on the asserted basis that the Respondent as claimant was not entitled to commence these proceedings by reason of the failure of the claimant to give to his insurer full details of "any economic losses and other losses that are being claimed as damages," being such as are "sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

3 Leave to appeal was granted on 6 March 2002. This appeal is thus essentially concerned with the correctness of the Trial Judge's decision on what are essentially jurisdictional issues defined by the statute, rather than matters going to discretion.

APPLICATION OF THE ACT

The relevant statutory provisions

4 The following propositions can be taken to be uncontroversial:

(1) Section 43A(7) of the Motor Accidents Act, insofar as presently relevant, provides that:

"(7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim ..."

(2) A "late claim" is one made more than six months after the "relevant date" for the claim under s43: see s43A(2). The relevant date for an injury claim is the date of the "motor accident" as defined by s3 to which the claim relates.

(3) the claim is made by giving notice of it to:

(a) the person against whom the claim is made; and

(b) that person's third party insurer.

See s43(4).

(4) In the present case:

(a) the motor accident occurred on 1 April 1998 [Blue, 15L];

(b) the claim was not made until August 1999. (It is not clear whether the date of receipt by the Appellant's insurer was 18 or 24 August: see Blue, 9N-O; 15L; 21E; 21J; 23L-M; 30O-P. Resolution of the difference is unnecessary.)

(5) The claim was thus made more than six months after the relevant date, indeed some 16 months after. In those circumstances the Trial Judge was obliged to dismiss it, if satisfied that the Respondent did not have "a full and satisfactory explanation for the delay in making the claim": s43A(7).

(6) That expression is defined by s40(2) as follows:

"(2) In this Part, 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."

(7) It is relevantly provided in s52(1A) that:

"(1A) A claimant is not entitled to commence court proceedings against another person in respect of a claim until:

(a) .....

(b) 90 days have elapsed since the details required by section 50A were given to the other person's insurer,

(c) ......"

(8) The "full details" so required are described in s50A as follows:

"Subject to section 52 (1A), a claimant is not entitled to commence court proceedings against another person in respect of a claim until the claimant has given the other person's insurer (if any) full details of:

(a) the injuries sustained by the claimant in the motor accident, and

(b) all disabilities and impairments arising from those injuries, and

(c) if those injuries, or any of them, have not stabilised, the prognosis for future recovery, and

(d) any economic losses and other losses that are being claimed as damages,

sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

(9) As is apparent from the statement of objects in s52(1), the 90 day requirement of s52(1A)(b) is one of a number of provisions in Pt 5 of the Act, the object of which is to encourage the resolution of claims without the need for court proceedings.

THE ESSENTIAL FACTS

5 The claimant was born on 12 October 1936. There is some evidence that the claimant already suffered from some mental deficits.

6 The accident occurred on 1 April 1998 when he was a pedestrian crossing a road and was struck by the Appellant's motor vehicle. The claimant was taken to St Vincent's Hospital. He was treated there and at the Royal Rehabilitation Centre Sydney, Ryde Hospital and by the Northern Area Health Service, before being released into the care of his sister; Red, 20H. His sister resided in Queensland and changed address some time after the accident.

7 The claimant continued to have treatment in Queensland (Blue, 17S and additional documents, Blue 55 and report of Dr Frank Miau to the insurer dated 16 August 2000, Blue 96).

8 As a result of the accident, the claimant suffered traumatic brain injury, fractured 5 and 8 rib, right haemothorax, fractured right tibia, fibular, delusional disorder as a result of brain injury, post-traumatic epilepsy, aspiration pneumonia, loss of teeth and tracheostomy affecting his voice (Red, 19 to 20F). It was accepted at the hearing that the main injury that the claimant suffered was brain damage, a delusional disorder and post-traumatic epilepsy and it was also accepted that he was disabled by the accident. There is no dispute that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds would not be less than 10% of the maximum amount that may be awarded for non-economic loss under s79 or s79A of the Act as at the date of the motor accident; see s43A(7).

9 On behalf of the claimant, affidavits were sworn by the claimant's solicitor, Alexander Reetov, Solicitor on 25 October 1999 (Blue, 1), Elaine Malm, the claimant's sister on 24 August 2000 (Blue, 6) and Rita Palazzolo, solicitor on 14 August 2001 (Blue, 40).

10 Para 4 of the affidavit of Mr Reetov deposed:

"On 29 April 1998 Ms Jane Morgan of Doherty Partners [the solicitors for the claimant] received brief instructions from the claimant's sister, Ms Elaine Malm. As the claimant sustained brain damage, he was obviously not in a position to provide instructions."

11 The affidavit of Ms Palazzolo deposes that the solicitor who first took instructions referred to above, Ms Jane Morgan, had no recollection of the file (para 4) and neither did her paralegal, Ms Kate Buckley (para 5); Blue, 40.

12 However, it appears from para 7 of Mr Reetov's affidavit that,

"in or about September 1998 Ms Jane Morgan authorised the closure of the claimant's file. The reason for the file closure is not apparent from my perusal of the file. It appears that the file was closed purely as a result of an administrative error on the part of Doherty Partners."

13 That relatively uninformative explanation was supplemented by letter of 6 July 2000 from Doherty Partners to the insurer which states,

· "in respect of the solicitor who had carriage of the matter at the time it was closed, Ms Jane Morgan, we confirm that she is no longer employed by the firm. Indeed the circumstances under which she left the firm were somewhat terse.

· We have contacted Jane Morgan however as at the date of this letter, we had not received a response from her.

· We will attempt to obtain an affidavit from her, however we are unable to compel her to provide us with an affidavit."

14 To these elements of the explanation for the failure to lodge the claim form until some sixteen months after the accident, should be added the following:

(1) the Respondent's sister (Mrs Malm) acted on his behalf. She gave instructions to Ms Morgan, a solicitor at Doherty Partners on 29 April 1998 [Reetov, Blue, 1(4); Malm, Blue, 6(2)-(3)].

(2) on that day she gave to Ms Morgan the executed claim form [Malm, Blue, 6(4)].

(3) she contacted Ms Morgan again, and gave her an update on the Respondent's progress on 21 May 1998 [Malm, Blue, 6(5)].

(4) on 15 July 1998 the Respondent's solicitors sent a facsimile to the New South Wales Police Service seeking some information in relation to the accident [Reetov, Blue, 1(5); 4]. There was no reply. This was hardly surprising. The facsimile to the Police Service gave the wrong date for the accident.

(5) the claimant was discharged from hospital on 5 September 1998 [Reetov, Blue, 2(6)].

(6) Doherty Partners closed its file on the matter at some time in September 1998 [Reetov, Blue, 2(7)], the only explanation given for this being the "Closed purely as a result of an administrative error on the part of Doherty Partners" (see above).

(7) on 10 May 1999 the Respondent's sister advised Doherty Partners of new contact details [Malm, Blue, 6(6)].

(8) on 20 and 29 June 1999 the Respondent's sister contacted Doherty Partners to "ascertain the status of the claim". She was advised on the latter occasion that "the file had been inadvertently closed" [Reetov, Blue, 2(9); Malm, Blue, 6-7(7)-(11)].

15 Finally, it should be noted that in para 12 of Mr Reetov's affidavit he deposes that "as the claimant now resides in Queensland and is not in the best of health, some delay was involved in the completion and execution of the claim form."

16 The Trial Judge's view on whether this constituted the "full and satisfactory explanation for the delay in making the claim" is to be found at Red, 23-4; I quote:

"The more difficult question is whether there has been put before the court a full and satisfactory explanation for the delay in making the claim. The onus is upon the Defendant to show that the Plaintiff has not done so. Much legitimate criticism may, in my view, be directed at the Plaintiff's solicitors, not only for their wholly unexplained failure to pursue actively the Plaintiff's file, but for the paucity of the evidence adduced in opposition to the motion before me. Sparse as the evidence is, however, there is, I think, enough for it to be inferred that the accident impacted significantly upon the Plaintiff's capacity to manage his own affairs and act appropriately in the protection of his interests. It is this circumstance which, in my view, may provide the full and satisfactory explanation which the material put before the court by the Plaintiff's solicitors, in my view, taken alone, does not. The inference as to the Plaintiff's incapacity arises from the reference in the claim form to the Plaintiff having suffered `traumatic brain injury' to having `delusional disorder as a result of brain injury' and suffering from `post-traumatic epilepsy'. Unfortunately, Mrs Malm, who presumably would be able to provide cogent evidence as to the level of her brother's cerebral functioning, is completely silent upon the subject. It is probably appropriate, however, that I take account of the fact that the proceedings are now brought by her as the Plaintiff's Tutor.

......

The definition is obviously somewhat difficult to relate to a mentally handicapped person, but, as it seems to me, where it refers to `a reasonable person in the position of the claimant' the legislature intended to take account of situations where, because of physical or mental incapacity, especially incapacity produced by the subject accident there could be delays attributable to such incapacity. In other words, regard must be had to a reasonable person suffering physical or mental incapacity to the extent of the particular plaintiff under consideration. That being so, when the inferred level of incapacity is combined with the material, albeit rather laconic, put before the court by the Plaintiff's solicitors, I do not think that the Defendant has discharged its onus of proving that the Plaintiff does not have a full and satisfactory explanation for the delay."

17 Mrs Malm, the sister of the claimant, was at the time the explanation was given, the person effectively in charge of the brain damaged claimant's claim. She subsequently brought the relevant proceedings as tutor, her status not being challenged by the Appellant. Both the District Court Rules and the Supreme Court Rules provide that a disabled person cannot commence proceedings in their own right; Pt 63 SCR, Pt 45 DCR. I agree with the Respondent's submission that insofar as the Act calls for a full and satisfactory explanation, that explanation will in practice usually come from those who are in charge of the claimant's affairs and in particular the conduct of the relevant proceedings. That person in this case is Mrs Malm, though it be recognised that she engaged solicitors to act on the claimant's behalf. Thus a disabled person can hardly be expected to supervise, oversee, or even be aware of actions taken by others on his or her behalf. So that if the explanation put forward by the solicitors is an inadequate one so far as their performance of professional duties are concerned, that should not be attributed to the claimant or Mrs Malm. The statutory requirement is to have a full and satisfactory explanation (s43A(7)) in circumstances where the statute (s40) hypothesises "a reasonable person in the position of the claimant failing to comply with the duty to have such an explanation. A reasonable claimant is not to be treated as having an unsatisfactory explanation, if the reason be that his or her solicitor has been less than fully frank about the reason for the delay, unless it can be shown that the claimant shared in that lack of candour, being aware of the true facts. I would adopt the words of Studdert J in Guest v Southern & Anor (Studdert J, NSWSC, 22 September 1995, unreported), though his remarks were directed to s52(3) of the then Act:

"Because there has been a breach of a time limitation, the claimant is required to explain the delay. In many cases (if not most), the delay will have been occasioned by some lack of diligence on the part of the claimant and/or his advisers. The function of the provision is to require the claimant to explain that conduct in the course of the providing of the full and satisfactory explanation of the delay. It is not to provide a weapon which may enable an insurer to defeat the claim because of such conduct. It may be defeated if the court decides that the claimant has failed to provide a full and satisfactory explanation for the delay. ... The court has consistently adopted the approach that the words "full" and "satisfactory" relate to the explanation offered for the delay and not to the conduct which has been responsible for the delay."

18 In Diaz & Anor v Truong ([2002] NSWCA 265, 19 August 2002, unreported) the views of Giles JA and Hodgson JA differ, with Foster AJA generally favouring the views of Hodgson JA. But Foster AJA agrees with Hodgson JA that the second sentence in s40(2) ("a reasonable person in the position of the claimant would have failed to comply with the duty") focuses attention on the claimant, at least to the extent that his particular position in the whole of the factual situation is to be taken into account [125]. But he would require, as would Giles JA, that the explanation also satisfy an objective standard of reasonableness applied to the claimant circumstanced as he was; compare s180 of the Corporations Act with its objective standard referenced to the director "in the corporation's circumstances". I would apply that double-barrelled test here, and focus on the explanation the claimant has, not his solicitor, but including under "claimant" the person in charge of his affairs (Mrs Malm).

19 The very strictness of the consequence, that a claimant will be prevented from proceeding, requires that close attention be given to what the Act actually does require by way of a full and satisfactory explanation. That serious consequence dictates giving the section the normal and natural meaning rather than an expansive one. On that question, the decision of Russo v Aiello (2002) 34 MVR 234 is of importance. (I should note that the High Court has recently granted leave to appeal in that case.) While Hodgson JA dissented, I would adopt the particular observation he makes at [22]. He points out that the legislation does not ask whether

"there was a full and satisfactory explanation given in this case" but rather whether "the court is satisfied that the appellants do not have a full and satisfactory explanation".

He goes on to say:

"the legislature could have made an application of the kind made in this case depend on whether or not a claimant had given a full and satisfactory explanation, and indeed could have imposed the onus of proof on the claimant. But it did not do so. It made such an application depend on whether the claimant had a full and satisfactory explanation, and impose the onus of proof on the defendants."

20 The Appellant has indicated that if the matter goes further, it would wish to challenge the determination as to onus of proof being upon the defendant, in this case the Appellant. There appears to be no difference on the onus question between Young CJ in Eq and Hodgson JA. Where they did differ was over the proposition, accepted by Young CJ in Eq, that the court must simply reach the conclusion "that there was not a full and satisfactory explanation given in this case" for the claimant to fail. Meagher JA concurred with Young CJ in Eq without discussing that question. The decision ultimately turned on whether the claimant was denied procedural fairness or not. The majority concluded that the claimant was not denied procedural fairness.

21 I prefer the construction of Hodgson JA that s43A(2) looks to whether the insurer has refuted that the claimant has a full and satisfactory explanation. In many cases knowledge as to the true facts concerning the reason for the lateness of the claim may reside in the solicitors. But given they may be responsible for the lateness, it would not be fair, nor consonant with the language of s43A(2), for the claimant to be disentitled were the solicitors for the claimant to fail to provide a frank explanation for their own delay. This is unless the claimant were properly aware of those circumstances and could, from that awareness provide that explanation. Here, there is no evidence to indicate that the claimant, being disabled has such an awareness, nor his sister, Mrs Malm, as the person in charge of his claim. On the face of it, all they knew was what the solicitors had said, including the laconically described "administrative error". I would be satisfied, whichever way the onus was placed, that the claimant had a full and satisfactory explanation, for the late claim, whatever the deficiencies in the solicitor's account of what happened.

22 In saying this, I do not doubt what was said in Nicholas v Webb (No. 2) (1993) 19 MVR 65 by Master Greenwood and followed recently by the Court of Appeal in Laidlaw & Anor v Touma [2002] NSWCA 190 at 17. There Stein JA quotes the former decision with approval, in support of his conclusion that an explanation must be "full", in the sense of "complete" to satisfy the statutory requirements:

"It is my view that in order properly to constitute the explanation required under s43 it will usually be necessary for both the claimant and his solicitor to set out in written form precisely what has and has not been done and the reasons for the acts and the omissions of each. These explanations must be detailed. It is not for the claimant's side to determine the relevance of behaviour going to the delay. Only then can an explanation be said to be full and satisfactory." [emphasis added]

23 All the above passage does is point to the likely practical outcome that the explanation will "usually" be forthcoming from both the claimant and his solicitor. I do not understand that reference to "necessary" in this context means that an explanation which came only from the claimant must for that reason fail to be "full and satisfactory". This is, unless it be the case that the claimant held back information he already had from his solicitor that was relevant to the explanation to be given. There is no suggestion of that in this present case.

24 Thus whatever be said about the necessity for the explanation being full, in the sense of complete, the completeness relates to the claimant's own state of awareness and that of those who are in charge of his or her application, without attributing to the claimant information of which the claimant could not be expected to be aware but was known to his or her dilatory solicitor. To suppose otherwise would be unfairly burdensome, and not required by the language of s43A(2) of the Act.

25 This provides a sufficient answer to the shortcomings advanced by the Appellant in the explanation given, which the Appellant contends renders it neither full nor satisfactory. The shortcomings were these:

(a) No steps were taken in the proceedings prior to closure of the file in September 1998, a matter for which there was no explanation.

(b) There was no explanation for the "closure of the file", other than the assertion that there must have been an error. There was no evidence of the systems in place to prevent or bring about such an error.

(c) there was no evidence of any contact between the solicitors and the respondent's sister between 21 May 1998 and 10 May 1999. It was conceded that this may be subject to a slight qualification in respect of the letter referred to by the claimant's sister at Blue, 7, (10)-(11). There Mrs Malm records that on 29 June 1999 she advised the solicitor, Mr Reetov, that she had written to Doherty Partners a few months before her phone call requesting that Jane Morgan contact her in respect of the claim and Mr Reetov advised there was no record of that call, whereupon she instructed him to proceed with the claim.)

26 Each of these supposed shortcomings are really shortcomings ultimately of the solicitors involved, Doherty Partners. Even as to that in (c) above, it is clear that Mrs Malm did not act unreasonably in conveying the instructions she did. In any event these are matter going to conduct, not explanation.

Conclusion

27 I am satisfied that, whether the onus be upon the Appellant or the Respondent, the claimant had a full and satisfactory explanation for the delay in making the claim, so that s43A(2) places no bar upon proceeding with what was "a late claim". In so concluding I would generally agree with the approach of Davies AJA. There is thus no basis to disturb the Trial Judge's finding on that ground.

Compliance with s50A of the Act - were full details provided to the insurer of "any economic losses and other losses that are being claimed as damages" being "sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."

28 Before dealing with the reasoning of the Trial Judge and the information actually provided, it is necessary to deal with an initial question of construction raised by the Respondent in this way.

29 For present purposes, let it be assumed that the full details of the relevant losses claimed as damages were not provided as required by s50A(d) of the Act. I refer here to the amounts for loss of future earnings and earning capacity, and for past and future domestic assistance. It would follow that the provisions of s52(1A)(b), combined with s50A,

(i) preclude any entitlement at all to commence court proceedings (s50A); and

(ii) impose a further 90 day pause once the relevant details have been provided before such court proceedings are entitled to be commenced (s52(1A)(b)).

30 Proceedings were in fact commenced on 29 March 2001, when the claimant filed his first Statement of Claim and Pt 9 Particulars. The latter include a claim for domestic assistance past and future. Thus, if the assumption earlier made were correct as to the failure to provide the necessary "full details" of the relevant losses claimed as damages (and it is conceded that there was no stated claim for domestic assistance) the Appellant's second ground of appeal must succeed. But this is unless any other provision of the Act altered that result, in the events that happened.

31 The Respondent argued that another provision of the Act did alter that result, namely s52(2) of the Act. In the events that happened the Respondent contended that s52(2) overrode s50A and not only s52(1A)(b). This was either because the insurer had denied all liability in respect of the claim (s52(2)(a)) or because the insurer had rejected the claimant's explanation for delay in making the claim (s52(2)(c)).

32 The question then is whether in those events s52(2), whose terms are stated below, is capable of overriding the prohibition in s50A on commencing court proceedings, where the necessary full details have not been provided. Clearly enough it overrides the "pause" provisions of s52(1A), being relevantly the 90 day pause. Section 52(2) is in these terms:

"(2) If notice is given to the other person's third-party insurer then despite subsection (1A) the claimant is entitled to commence court proceedings if any of the following occurs:

(a) the insurer denies all liability in respect of the claim,

(b) the insurer admits partial liability in respect of the claim but the claimant is dissatisfied with the extent to which liability is admitted,

(c) in the case of a late claim within the meaning of section 43A, the insurer rejects the claimant's explanation for delay in making the claim or rejects the claim on the ground that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident."

33 The Respondent's argument starts with the proposition that regard must be had to the objects of s52, namely to encourage and facilitate settlements, without the necessity for commencing court proceedings. That object in turn is said to support a construction of s52(2) where an insurer, as here, denies all liability in respect of the claim or else rejects the claimant's explanation for delay in making the claim. For then it is said there is no point in barring the Respondent from proceeding, or in mandatorily requiring full details of the relevant losses to be provided (s50A(d)) or indeed for the earlier requirement of s50A for giving the insurer full details of injuries, disabilities and prognosis. This is because the insurer has made it clear that in any event it denies liability and rejects the claimant's explanation for a late claim.

34 A fundamental problem with this interpretation is that it finds little support in the language of the Act. Clearly enough s50A is expressed to be subject to s52(1A). But there is no suggestion in s50A that it is also to be subject to s52(2), as must necessarily be the case if the Respondent's preferred construction were to be accepted.

35 Moreover s52(2) does not express itself as prevailing over s50A with its mandatory provision precluding entitlement to commence proceedings. Rather s52(2) is expressed only to be "despite subs (1A)". That means that s52(2) does not purport to override s50A but only overrides the 90 day (and other) pauses, in s52(1A).

36 Finally, when one comes to consider the effect of the objects expressed in s52(1), it is difficult to see how encouraging prior settlement supports the construction that the Respondent favours. Indeed the sanction against failure to provide the "full details", being the inability then to commence court proceedings, works rather in support of the object of avoiding court proceedings and encouraging settlement. If there were no longer any sanction simply because an insurer denied all liability, failure to provide the full details would occur with relative impunity. That in turn would weaken the incentive to provide the full details reflected in that sanction. While there at first appears some plausibility in contending that where the insurer denies all liability, that then the insurer is indicating that he is not interested in being provided with full details, there is a simple answer. Such a denial can only be predicated on the basis of what was known to the insurer at the time. The insurer has been given incomplete details. That insurer may not have denied liability in the event that the full details required by s50A, if lacking, were subsequently given.

37 The credibility of the argument is weakened even further when one looks at sub-paras (b) and (c) of s52(2). Thus there is no logical connection between, for example, the insurer rejecting the claimant's explanation for delay and the supposed result that full details would be no longer material to the insurer. If anything, the opposite is the case.

38 The argument therefore put by the Respondent as to s52(2) must fail. The Respondent must therefore grapple with any deficits in the full detail required by s50A to be furnished and the consequences which follows if it were not. I should note at this point that, though only by way of obiter, in Diaz v Truong, Hodgson JA (at [102] and very briefly) appears to favour the view that s52(2) prevails over s50A. With respect, I would take the opposite view.

39 When one turns now to the material in fact provided, the Respondent's submissions starts with the proposition that s50A, in requiring "full details" does not require this to be provided in some formal fashion; there is no form or set procedure laid down by statute. The contention then is that a series of communications from Claimant to insurer may provide the necessary "full details". It can come in dribs and drabs, unannounced. It is then contended that, in the events that happened, this was done or at least substantially done. But to the extent that, as was conceded, there was not provided a claim for domestic assistance, it is said that the need for it should have been readily apparent from the information that was provided and its absence either waived or its existence as a claim necessarily assumed. It follows, if correct, that this information as a whole did in fact satisfy the requirement for "full details" but to the extent they were deficient, their partial omission was waived.

40 The latter appears to be the reasoning of the Trial Judge, as appears from his reasoning at Red, 24 - 25, quoted below:

"Although the decision of the Court of Appeal upon an application for leave in Dandashli v Dandashli (16 December 1996) does not, in relation to Sec 50A of the act, establish any binding principle of law, I should, I think, follow what I understand to be its approach. The action was not commenced by the Plaintiff until 29 March 2001, more than eighteen months after the service of the Notice of Claim in august 1999, and well over a year after the Plaintiff's solicitors, by their letter of 22 October 1999, provided "Sec 50A particulars". Moreover, as I have indicated, the letter to NRMA Insurance Ltd of 6 July 2000, enclosed copies of clinical notes and a medical report. It seems likely that these documents put the Defendant on notice of the likelihood of a claim for domestic assistance, despite the solicitors failure to mention it in their letter of 22 October 1999. I hold that the undoubted shortcomings of the Plaintiff, or his solicitors, in complying with Sec 50A of the Act has, in the circumstances, been waived by the insurer which, in any event, according to the tenor of the correspondence in evidence before me, has always intended to deny liability in circumstances where, on the face of it, liability is likely to be very much in issue."

41 The Appellant contends that the Trial Judge erred in finding that compliance with s50A had been waived. It correctly points out that the case is significantly different from Dandashli v Dandashli (Court of Appeal, 16 December 1996, unreported). In Dandashli, the insurer made no complaint as to the deficiencies in the Notice of Claim and it was obvious that it was deficient. Whereas here, following submission of material to the insurers, in particular the letter of 22 October 1999 expressly claiming to set out s50A particulars (Blue, 25) the insurer understandably responds on 1 December 1999 (Blue, 27) with only one question. It assumes no other information was required having regard, no doubt, to the claims actually asserted. That question is directed to causation, not specific items of loss, by reference to past disability and the pension for it.

"We note that your client was on a disability support pension at the time of the accident and there is no claim for past economic loss. Please advise for what condition the claimant was receiving a disability support pension and the length of time he had been in receipt of this pension."

42 I say understandably, because in the last paragraph of the letter from the solicitors for the claimant on 22 October 1999 it is said:

"The Plaintiff was on a disability support pension at the time of the subject action and there is no claim for past economic loss. It is alleged that the Plaintiff had a residual earning capacity at the time of the accident and the Plaintiff claims a general `buffer' in respect of this loss."

43 When eventually a statement pursuant to Pt 9 r27 is provided on commencing proceedings on 29 March 2001, paras 7 to 9 claim for the first time very substantial sums for "loss of future earnings and earning capacity" but more particularly for "particulars of domestic assistance" and "particulars of future domestic assistance".

44 The Respondent seeks to contend that when regard is had to the overall effect of the information provided, it should have been apparent to the insurer that the nature of the claimant's injuries including the medical and hospital notes, made it self-evident that he would be claiming for both past and future domestic assistance.

45 However, a fair analysis of the material collected in the Blue Book shows that while the Respondent's solicitor had by the medical reports, dealt with the Respondent's hospitalisation and his then physical state, there is no statement clearly identifying what his care regime should be or his future needs. In particular there is nothing directed to s72 of the Act dealing with the provision of certain home care services up to a maximum amount. Nor was there any particularisation as was eventually set out in the Pt 9 r27 Particulars. The position is further complicated by the difficulty of separating any pre-existing condition in terms of mental deficit, and the effect of the accident. The Respondent's advisers are not entitled to lead the insurer to believe that the claim for loss is at a lesser level and then sue for a whole additional set of damage claims. The legislation does not require the insurer to divine for itself from the hospital notes and the like that such claims could be expected. That defeats the object of pre-trial settlement being encouraged, on the basis of a known claim with the relevant items of damage. Their very omission from what purported to be the s50A particulars would rather have led the insurer to conclude that these items were not claimed.

46 It follows that there was no waiver by the insurer. The omission in terms of s50A(d) was conceded and properly so. The mandatory provisions of s50A therefore preclude any entitlement to commence these court proceedings.

Conclusion

47 Because s50A was not complied with in failing to provide the mandatory "full details" of "any economic losses and other losses that are being claimed as damages", the claimant was not entitled to commence court proceedings and thus the Appellant's second ground of appeal must succeed.

48 It is open to the Respondent to seek such leave from the District Court as would be required to re-commence proceedings after providing the relevant full details required by s50A of the Act. It would be a matter for the District Court to determine whether or not such leave should be allowed in the circumstances. In that regard it is difficult to see how the Appellant would be prejudiced in the circumstances. However, that must be a matter for the District Court to determine should the Respondent so proceed.

ORDERS AND COSTS

49 Given that the Appellant has succeeded on only the second of its two claims, but not first, I would propose to deal with costs as set out below.

50 I propose the following orders:

(1) That the appeal be allowed and the judgment of Patten DCJ set aside.

(2) That the Statement of Claim filed in the District Court be dismissed.

(3) That the Respondent pay the costs of the Appellant on the appeal.

(4) That the Appellant be released from his undertaking to pay the Respondent's costs of the appeal but would make no order as to costs of the appeal.

51 DAVIES AJA: The facts are set out in the reasons for judgment of Santow JA, which I have had an opportunity to read.

52 Section 43A(7) of the Motor Accident Act 1998 provides, inter alia:

"(7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim..."

53 That provision is not concerned with the institution of proceedings within the relevant limitation period but with the failure of a plaintiff to give notice of his or her claim within six months of the motor accident. As the section permits the striking out of an action where notice was not given within the short time stipulated by s43(2), the section should not be given an expansive operation but should be applied having regard to the normal and natural meaning of the words which it uses.

54 The sub-section requires that the court be satisfied that, "the claimant does not have a full and satisfactory explanation for the delay in making the claim." Unlike s43A(2),(4) and 6(a), the provision does not use the term "provide", "provided" or provision". The onus necessarily fell upon the appellant, who was the applicant for the order of dismissal, to establish that the respondent did not have a full and satisfactory explanation for the delay. Of course, an explanation actually provided by or on behalf of an injured party will be strong evidence of the explanation which the person has.

55 In my opinion, the evidence given on behalf of the respondent, the injured claimant, was not a full and satisfactory explanation for the delay. The explanation given was not full and was not satisfactory. It did not meet the requirements set out in s 40(2), which requirements were explained in Laidlaw v Touma [2002] NSWCA 190 by Stein JA at para 17 and in Diaz v Truong [2002] NSWCA 265 by Giles JA at para 52 and by Foster AJA at para 122.

56 The respondent himself had suffered brain damage and was in care or in hospital for more than six months after the accident. However, the respondent's sister, Mrs Malm, attended upon the solicitors on 29 April 1998, less than a month after the accident. She was seen by an employee solicitor, Ms Morgan. On Mrs Malm's evidence, she handed Ms Morgan an executed claim form, although this form was not exhibited to any affidavit. Ms Morgan did not arrange for service of that or any claim form. In September 1998, Ms Morgan directed that the file be closed and it was then filed away.

57 Ms Morgan did not give evidence and no acceptable explanation for her having failed to ensure that a notice of claim was served or for closing the file was proffered. A full description of the relevant facts was not provided. Moreover, Mr Reetov, a partner in the firm of solicitors, deposed that:

"It appears that the file was closed purely as a result of an administrative error on the part of Doherty Partners."

That statement was inadequate and unsatisfactory. The most probable explanation of the events is that Ms Morgan was grossly negligent in looking after the respondent's affairs and that she failed to ensure that the respondent's claim was prosecuted in accordance with his instructions. No affidavit mentions or suggests that a lack of funds contributed to the events. The explanation given fails to meet the requirements of a full and satisfactory explanation.

58 However, that conclusion leaves me with the impression that the solicitors were negligent in their prosecution of the respondent's claim and negligent again in failing to provide a full and satisfactory explanation for the delay. I am not surprised that the firm of solicitors involved in the case was also the firm whose negligent actions were considered in Diaz v Truong.

59 I am not satisfied that the respondent does not have a full and satisfactory explanation for the delay, merely that the affidavits filed by the solicitors on his behalf were inadequate in setting out the facts and in providing an explanation. It seems to me to be probable that a full and satisfactory explanation for the delay could be given on behalf of the respondent if the facts of the matter were set out in detail.

60 I agree with the observations of Foster AJA in Diaz v Truong as to the weight to be given to a solicitor's negligence. Each case must be examined on its own facts. On the facts of the present case, I consider that, had a full explanation been given, the finding of Foster AJA in Diaz v Truong would have been apposite, where his Honour said at para 128:

"Having regard to the reasonable reliance of the family upon the solicitor's advice and the total incapacity of the opponent herself, I am satisfied that the explanation is satisfactory."

61 In this circumstance, as the onus was on the appellant, the application based on s 43A(7) should be dismissed. The ruling of the trial Judge to that effect should not be disturbed.

62 I agree with Santow JA's reasons with respect to the claim for dismissal for non-compliance with s 50A and s 52(1A)(b).

63 Section 50A should not be given a strict or technical application. Substantial compliance is sufficient. However, in this case, the solicitors failed to provide any particulars of what must be a major element of the damages claim, that is, the claim for an allowance for the care given to and the accommodation provided for the respondent by his sister Mrs Malm. That failure is again indicative of the standard of the work of this firm of solicitors.

64 I agree with the orders proposed by Santow JA.

65 McCLELLAN J: I have had the benefit of reading in draft, the reasons for judgment of Santow JA and Davies AJA. I agree, for the reasons given by Davies AJA, that the appeal, with respect to s 43A(7) of the Motor Accidents Act 1998 should be dismissed. I agree, for the reasons given by Santow JA that the appeal, with respect to non-compliance with s 50A and s 52(1A)(b), should be upheld.

66 I agree with the orders proposed by Santow JA.

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LAST UPDATED: 06/09/2002