Sharif Zraika (by next friend Halima Zraika) v Rebecca Jane Walsh [2011] NSWSC 1569 (20 December 2011)

Last Updated: 11 January 2012

Supreme Court New South Wales

Case Title:	Sharif Zraika (by next friend Halima Zraika) v Rebecca Jane Walsh
Medium Neutral Citation:	[2011] NSWSC 1569
Hearing Date(s):	26, 27, 30 September 2011
Decision Date:	20 December 2011
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Proceedings adjourned to hear further from the parties.
Catchwords:	MOTOR ACCIDENTS COMPENSATION - leave to commence proceedings out of time - time limit of 3 years - full and satisfactory explanation - prejudice
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946 Limitation Act 1969 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Supreme Court Act 1970
Cases Cited:	Creevy v Barrois [2005] NSW CA 264 NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254 Walker v Howard [2009] NSWSC 408; 55 MVR 9
Texts Cited:
Category:	Procedural and other rulings
Parties:	Sharif Zraika (plaintiff) Rebecca Jane Walsh (defendant)
Representation
- Counsel:	Counsel P. Maiden SC, T Boyd (for the plaintiff) K. Rewell SC (for the defendant)
- Solicitors:	Solicitors Kheir Lawyers (for the plaintiff) Dibbs Barker (for the defendant)
File number(s):	2011/52630
Publication Restriction:

JUDGMENT

1. The plaintiff, Sharif Zraika, is severely disabled and his mother, acting for the purposes of these proceedings as his next friend, applies for leave to commence proceedings for damages arising out of a motor vehicle accident that occurred on 16 November 2002. Pursuant to the terms of s 109 of the Motor Accidents Compensation Act 1999 (hereinafter "the Act"), leave to commence the proceedings must be sought from the Court because the ordinary time in which to commence proceedings has expired.

2. These are unusual proceedings. On 16 November 2002, the date of the relevant accident, the plaintiff was not yet born. If leave to commence proceedings were to be granted, the plaintiff will allege that the motor vehicle accident injured him in utero. His mother, who is also his tutor in these proceedings, was 25 weeks pregnant at the time of the accident. Sharif was born on 6 March 2003 with profound disabilities.

Facts

3. The primary facts are agreed, as are the essential procedural steps that have been taken or have not been taken. I recite the chronology:

"16.11.2002	Motor vehicle accident occurs
6.3.2003	Plaintiff born
6.5.2003	Mrs Zraika completes motor accident personal injury claim form in respect of her injuries
9.5.2003	Police report ordered by Mr Kheir
21.8.2003	MRI Scan at Randwick Children's Hospital
30.9.2003	Instructions received to investigate causal connection between the trauma of the motor vehicle accident and the boy's profound disabilities
30.9.2003	Request for copy of clinical notes of Liverpool Hospital
17.12.2003	Preparation of Motor Accident Personal Injury Claim Form
22.12.2003	AAMI issue s 81 notice denying liability
9.6.2004	Allianz assumes management of Mrs Zraika's claim from AAMI
5.7.2004	Mr Kheir confers with Mr Boyd of Counsel
23.8.2004	Dibbs Barker Gosling solicitors advise that they are instructed to act on behalf of Allianz in respect of claim
27.8.2004	Solicitors for insurer request particulars
29.9.2004	Certificate issued by CARS exempting claim from assessment under s 92(1)(a) of the Motor Accidents Compensation Act 1999
5.10.2004	Advice from Mr Boyd of Counsel
7.10.2004	Mr Kheir seeks clinical records from treating doctor, Dr Bova, of Liverpool
7.10.2004	Mr Kheir qualifies Dr McMaster-Fay
26.10.2004	Dr McMaster-Fay advises prepayment required
16.11.2004	(Exhibit C to Affidavit of M J Seisun) Plaintiff's solicitors provide answer to request for particulars in respect of Plaintiff
20.12.2004	Mrs Halima Zraika's files Statement of Claim
20.12.2004	Statement of Claim issued in the District Court of NSW by Mrs Zraika against the Defendants, Rebecca Jane Walsh and Joseph Bernard Walsh
10.5.2005	(Exhibit G to Affidavit of M J Seisun) From Plaintiff's solicitors enclosing Authority for medical reports to be released
19.8.2005	Conference with Dr McMaster-Fay and Mr Boyd of Counsel
19.9.2005	Defendants file Notice of Grounds of Defence admitting breach of duty of care
20.9.2005	(Exhibit H of Affidavit of M J Seisun) from Gibbs Abbott Stillman to Kheir & Associates requesting confirmation that proceedings have been brought against Liverpool Hospital in respect of the Plaintiff and seeking name of treating obstetrician in respect of her second pregnancy
14.10.2005	Conference at Mr Kheir's office at Punchbowl with Mr & Mrs Zraika and Mr Boyd of Counsel - instructions to pursue the matter and obtain a report from Dr McMaster-Fay
17.10.2005	Mr Kheir applies for clinical notes from Liverpool Hospital
16.1.2006	Letter from Kheir & Associates to Gibbs Abbott Stillman re Halima Zraika and Walsh
23.3.2006	Advice from Dr McMaster-Fay
6.4.2006	Conference with Johnston at Keith Rewell's chambers regarding both claims
24.5.2006	Telephone call by Matthew Seisun and Grant Johnston
7.6.2006	Matthew Seisun sends brief to Grant Johnston, consulting engineer (page 45) in respect of both Sharif and Halima Zraika's claims
3.7.2006	Email Grant Johnston to Matthew Seisun seeking historic set of plans from RTA
17.7.2006	Conference between Johnston and lawyers at offices of Dibbs Abbott Stillman regarding Sharif and Halima's claims
22.8.2006	Conference with Mrs Zraika and Mr Boyd of Counsel
5.9.2006	Letter from Johnston to Nicholas Ghabar of Dibbs Barker Gosling
18.9.2006	Dr William Molloy qualified to provide expert medico-legal opinion
8.11.2006	Request by Matthew Seisun for verbal advice from Grant Johnston
20.11.2006	Email to Johnson from Matthew Seisun regarding progress of claims
26.2.2007	Report of Dr Molloy
7.5.2007	Email from Matthew Seisun to Grant Johnston re Halima and Shariff Zraika - brief to advise
2.6.2007	Inspection of site by Grant Johnston (takes series of digital photographs) (111) and conducts detailed geometric survey
9.7.2007	Mrs Zraika's case settled
23.7.2007	Conference with Mrs Zraika and Mr Boyd of Counsel - Mr Boyd to provide a memorandum of advice
25.5.2007	Date of draft report of Grant Johnston
3.9.2007	Inquiry made by solicitor of Johnston regarding report
4.9.2007	Email Johnston to Seisun re Shariff Zraika
September 2007	Preparation of draft report by Grant Johnston
September 2007	Meeting between Matthew Seisun and Grant Johnston re final report
29.2.2008	Conference with Grant Johnston and Matthew Seisun
7.7.2008	Comprehensive advice from Mr Boyd of Counsel
29.7.2008	Conference with Mr & Mrs Zraika and Mr Boyd of Counsel at Punchbowl
15.8.2008	CT Scan of Plaintiff from Children's Hospital
7.10.2008	Dr Rosenbloom qualified to provide expert opinion
24.10.2008	Conference with Dr Rosenbloom and Mr Boyd of Counsel in Liverpool, UK
28.10.2008	Report of Dr Rosenbloom
21.11.2008	Dr Andrew Korda qualified to provide expert opinion - arrangements made for a conference with Dr Korda at first available date for the expert
21.4.2009	Conference Dr Korda and Mr Boyd of Counsel
21.4.2009	Mr Boyd of Counsel advises that a paediatric neuro-radiologist should be qualified
25.6.2009	Mrs Zraika to obtain the MRI films
10.8.2009	Email Seisun to Johnston regarding progress of report
9.2.10	Johnston report received
11.2.2010	Dr Chris Wong, paediatric radiologist, qualified (Mr Kheir attempting to arrange other paediatric radiologists without success, including Dr Adam Steinberg)
23.3.2010	Dr Wong reports by email
July 2010	Mr Kheir instructs his employee, Anthony Porthouse, to take over the conduct of the matter
20.7.2010	Dr Michael Harbord qualified
27.9.2010	Johnston report sent to Allianz"

The statutory framework

4. The statutory framework of the Act has been the subject of analysis on a number of occasions. Usually that analysis concerns the role of assessment. That analysis, while relevant for current purposes as part of the overall understanding of the scheme of the Act, is not for present purposes repeated. In NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344 at [22] and following, I dealt with the structure of the Act. I rely on that summary and the cases cited therein.

5. It is important to summarise some features of the structure of the Act that are particularly relevant to the current issues. One of the purposes of the Act is to facilitate compensation for motor accidents without the need for curial proceedings. Proceedings may still occur in court, but the Act contemplates an alternative mechanism.

6. The Act imposes upon persons injured, as a result of a motor vehicle accident, an obligation to co-operate with persons said to be at fault and with that person's insurer, inter alia, by providing sufficient information to enable the insurer (predominantly) to endeavour to resolve the claim expeditiously and justly. Early settlement and expedition are major objects of the scheme.

7. On the other hand, a duty is imposed on insurers to make a reasonable offer of settlement and to seek to resolve liability expeditiously.

8. As a consequence of the important object of facilitating expedition, the Act imposes time limits that require conduct more quickly than most schemes dealing with personal injury applying at the time the Act was promulgated and certainly more quickly than used to be the situation under the then common law. It is in that context that the particular provisions of the Act must be understood.

9. The definitions of 'motor accident' and 'claim' confine the operation of the Act to injury to a person as a result of the operation of a motor vehicle. There is no doubt that, if the injury to the plaintiff were caused as alleged, it was caused by a motor vehicle. Interestingly, there is no definition of 'person', but the definition of 'injury' includes 'pre-natal injury', as a consequence of which, it would seem that the Act applies to an injury caused in utero. Neither party in these proceedings submits otherwise and I accept for present purposes that the Act applies to an injury to an embryo, at least in circumstances such as the present, where the embryo is born and lives with an injury said to have resulted from the motor vehicle accident.

10. On that basis, the terms of s 3A, which confine the application of the Act (only in respect to the death or the injury to a person), do not need further analysis. Notwithstanding the acceptance that the Act applies to the injury caused to the plaintiff, assuming causation for the present purpose, it is impossible for a claimant in the position of the plaintiff to comply with many of the duties imposed upon claimants for the purpose of facilitating expedition. For example, s 70 of the Act imposes on a claimant the duty to report an injury to a police officer with 28 days after the motor accident. In this case, the claimant was not born within 28 days after the motor accident. Non-compliance with the duty within the time frame prescribed may give rise to a dismissal of an application before the Court. Likewise, s 72 of the Act requires that a claim must be made, by the filing of a notice within six months after the relevant date, being, in this case the date of the motor accident. Six months after the relevant date the plaintiff was two and a half months old. There is provision for the making of late claims (see s 73 of the Act), but only if a full and satisfactory explanation for the delay is provided.

11. Part 4.5 of the Act deals with proceedings in court and provides that such proceedings may be taken in any court of competent jurisdiction (s 107 of the Act). Generally, those claims that are subject to court proceedings have been exempted by the Principal Claims Assessor as not suitable for assessment by a Claims Assessor (see s 108 of the Act).

12. Most relevantly, for present purposes, court proceedings may not be commenced more than three years after the date of the motor vehicle accident except with the leave of the court. Section 109 of the Act is in the following terms:

" 109 Time limitations on commencement of court proceedings

(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after:

(a) the date of the motor accident to which the claim relates, or

(b) if the claim is made in respect of the death of a person-the date of death,

except with the leave of the court in which the proceedings are to be taken.

(2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued.

(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.

(4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity.

(5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim."

13. Given the seriousness of the injury suffered by the plaintiff, no issue arises under s 109(3)(b) of the Act and, in any event, s 109(4) of the Act overcomes any such issue for present purposes. As is obvious from the foregoing, the plaintiff's age and condition each legally incapacitate the plaintiff.

14. I do not recite the terms of s 110 of the Act, which allows an insurer to give notice to a claimant requiring the claimant to commence court proceedings. The plaintiff, before the Court, submits that any prejudice to the defendant, to which the Court will come, should be treated as a complaint that is disingenuous, because the insurer could have given notice under s 110. Lastly, it should be noted that s 109 of the Act is in Part 4.5, which is part of Chapter 4 of the Act, which contains the following definition:

"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."

(section 66(2) of the Act)

The meaning of "full and satisfactory explanation"

15. Construction of the term "full and satisfactory explanation" in an identical context, namely s 43A of the Motor Accidents Act 1988, was considered by the High Court in Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643. In the reasons for judgment of Gleeson CJ, the High Court there said:

" [4] The concept of a "full and satisfactory explanation" is, to some extent, explained by s 40(2), which deals with the two elements as follows. A full explanation is said to be a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The word "full" takes its meaning from the context. It refers to the conduct bearing upon the delay, and the state of mind of the claimant. The subsection goes on to provide that an explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay.

[5] Part 5 is replete with legislative declarations of its objects. This is not an exercise in apologetics. Rather, it gives practical content to terms such as "reasonable", "justification" and "satisfactory". What would constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in the light of the legislative purposes explained in the Act. That matter is taken further by a specific provision (in s 43A(3)) that evidence as to delay in the onset of symptoms of physical injury may form part of an explanation.

...

[8] The mandatory language of s 43(2)(a) (a claim must be made within six months) is qualified by s 43A(2) (a claim may be made later if a full and satisfactory explanation is provided). However, the mandatory language is taken up again in s 43A(7), which provides that 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". No discretion is conferred. If a certain state of satisfaction exists, the proceedings must be dismissed.

[9] There was some argument about the significance of the word "have" in s 43A(7). It will be necessary to return below to the facts of the present case. As a matter of statutory construction, however, it is impossible to conclude that the legislation attaches significance to a supposed difference between having an explanation and providing one. In that respect, it is necessary to put the issue into perspective.

[10] What is in question in a case such as the present is an explanation for delay on the part of a claimant in making a claim; that is to say, an explanation for the conduct of the claimant. Leaving aside cases of incapacity, or other exceptional circumstances, ordinarily it will be the claimant who is in the best position to give what s 40(2) describes as "a full account of the conduct, including the actions, knowledge and belief" of the claimant in relation to the reasons for the delay. Often, perhaps usually, the claimant will be the only person who is in a position to give such an account. Section 43A(2) relaxes the strict time limit imposed by s 43(2), but only on condition that the claimant provides a full and satisfactory explanation of the delay. That explanation is to be "provided in the first instance" to the prospective defendant's insurer. The reference to the explanation being thus provided in the first instance is linked to s 43A (7), which refers to the duty of a court to 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". The existence of such a state of satisfaction is a condition precedent to the operation of the statutory duty to dismiss the proceedings. It follows that a defendant seeking an order dismissing proceedings will be entitled to such an order if, and only if, after evidence and argument, the court is persuaded to such a state of satisfaction. In that respect, the defendant carries the onus. But when regard is had to the nature of the question about which satisfaction is required, which is a question concerning the reasons for the conduct of the claimant, and is a matter about which the claimant will ordinarily be the person best able, and will often be the only person able, to give information, then a court would be likely to infer that such information as is made available to it by a claimant (which may involve information in addition to that provided to the insurer) is all that a claimant can say by way of explanation of his or her conduct."

16. I have omitted from the foregoing lengthy recitation of the reasons for judgment of Gleeson CJ a passage in [6] in which his Honour expresses the view, somewhat presciently, that the concept of a "reasonable person in the position of the claimant" (as used in s 66(2) of the Act) could give rise to difficulties. Those difficulties will be addressed later in this judgment.

17. In the joint judgment of Gummow and Hayne JJ, their Honours discussed the term "full and satisfactory explanation" and expressed the view that an explanation may be full but not satisfactory and satisfactory but not full, although the latter seems a mostly theoretical possibility that would seldom occur. Their Honours continued:

" Whether a "reasonable person" would have been so "justified" requires an evaluation by reference to a hypothetical objective standard and in light of the objects of the Act. Part 55 of the Act evinces a legislative intention "to promote prompt settlement of claims and to encourage forensic diligence". The statutory scheme, emphasised repeatedly in the provisions to which reference has earlier been made, is to encourage the early investigation, assessment and resolution of claims. The statute in terms indicates that this scheme is intended to advance the interests of claimants in rehabilitation, prompt treatment and prompt payment of lost earnings and the interests of insurers in more accurately predicting claim frequency and formulating premiums. Those objects are sought to be achieved by the imposition of time limits and obligations to act expeditiously on both claimants and insurers "

( Russo at [74] per Gummow and Hayne JJ. Citations omitted.)

18. The issue on which Gleeson CJ commented as to the difficulties associated with the test as to whether a reasonable person would have failed to comply with the duty or would have been justified in experiencing the same delay was examined and considered by the Court of Appeal (Spigelman CJ, Allsop P, Campbell, Macfarlan and Young JJA) in Walker v Howard [2009] NSWSC 408; 55 MVR 9. The Court of Appeal concluded that a claimant who is legally incapacitated was still required to provide a full and satisfactory explanation for the delay: see Walker , supra, at [47].

19. The difficulty in applying that test is that, on one view of the Court of Appeal judgment, the Court must have available to it evidence of the "actions, knowledge and belief of the claimant" who, at the time the limitations period expired, was a mentally incapacitated sufferer of cerebral palsy under three years of age.

20. While the Court, as presently constituted, is prepared to accept that parents may have some understanding of the needs of their child, the proposition that a parent is capable of attesting to the "belief" or "knowledge" of the child who is, at that time, wholly uncommunicative is difficult to apply in practice. On that view, the Court must receive an explanation that includes the actions, knowledge and belief of the claimant's tutor (which would be inconsistent with the proposition that the injured person remains the claimant) and fictionally attribute to the claimant, the actions, knowledge and belief of his tutor.

21. Realistically, a tutor can testify as to the actions of a claimant, but, in circumstances such as those presently before the Court, the tutor could not give an explanation being a full account of the knowledge and belief of the claimant from the date of the accident until the date of providing the explanation. Apart from anything else, in these proceedings, the claimant was not born for part of that period.

22. Presumably, if that analysis is applied, the Court of Appeal would be suggesting that evidence of the tutor as to the beliefs and knowledge of an embryo or child is admissible as some form of exception to the rules of evidence.

23. An alternate application of the principles expressed by the Court of Appeal is that the conduct of the claimant is explained to the extent possible. On this view, the required explanation would deal with actions of the claimant (and on the claimant's behalf) and would deal with the claimant's knowledge and belief only to the extent that it is known. Further, on that basis, to the extent that a tutor is acting, the tutor's knowledge and belief would be relevant. But all the while, it is the claimant's conduct that must be assessed for the purpose of determining whether there is a full and satisfactory explanation under s 109 of the Act.

24. It is this latest approach that I will apply, but reference will be made to the other possible application of the judgment of the Court of Appeal.

25. On any analysis of the reasons for judgment of the Court of Appeal to which reference has already been made, in relation to other aspects a number of principles have been established or clarified. It is necessary to set them out. As is implicit in the foregoing analyses a claimant in the circumstances of the plaintiff in these proceedings, namely, one who is legally incapacitated due to both age and mental capacity is, nevertheless, required to provide a full and satisfactory explanation for the delay: see Walker at [47]. That responsibility as has already been stated is undertaken by the persons who are acting on behalf of the plaintiff, namely his tutor (in this case his mother) and his legal representatives: Walker at [47] - [53] and [110].

26. The question that defies answering, in the circumstances suffered by the plaintiff, is what choice did the plaintiff have? What alternative was reasonably open to a plaintiff, who is incapable of speaking, moving or entering a contract and paying for litigation, other than relying on his parent, in the first instance, and the generosity of his lawyers, in the second instance?

27. A purposive approach should be taken to the requirements of the Act, and in that regard, the explanation that is given must be such as to enable the court to evaluate the reasons for the delay and all information relevant to that evaluation is required to be adduced: Walker at [57].

28. The test is an objective one, namely, whether a reasonable person in the claimant's position would have been justified in experiencing the delay ( Walker at [64], [108] and [134]), but the position of the claimant includes the legal or physical disability under which the claimant suffers, ( Walker at [64], [97] and [107]).

29. Even if, contrary to the authority in the Court of Appeal by which I am bound, and to which reference has been made, the reasonable person in the claimant's position was a term that did not take account of the physical disabilities suffered by the claimant, there would be little or no difference in the circumstances of this case, where the claimant is now eight and a half years old, as already stated. At the conclusion of the three-year limitation period the claimant was two years and eight months of age. The period for which explanation is required is the period from the date of accident until the date upon which leave is sought to commence the proceedings, and, as again already stated, in this case includes the period during which the plaintiff was unborn.

30. Nevertheless, it is not the tutor or the legal advisors that are even fictionally the "reasonable person" to which the Act refers, but their conduct forms, usually, part of the circumstances to be taken into account when considering whether the delay was justified: Walker at [100] and [150].

Has the plaintiff provided a "full and satisfactory explanation"?

31. The material before the Court attests to the conduct of the plaintiff, the conduct of his tutor and the conduct of his legal representative. The material sets out all of the relevant information that was available and to that extent, the Court can draw inferences as to knowledge, assuming without deciding, that the condition of the plaintiff is such that he has the capacity to comprehend the information. The material does not deal with the beliefs of the plaintiff. Those beliefs are, on the material before the Court, unavailable and unknown.

32. The information before the Court deals with the impecuniosity of the plaintiff and his parents, the steps that were taken largely at the expense of the legal representatives on his behalf, and the difficult question associated with causation. It was the inability for his legal representatives to obtain medical evidence relating to the accident being a substantial cause of the injury that was largely the cause of the delay in commencing proceedings.

33. I consider the affidavits of the tutor Halima Zraika, the mother of the plaintiff and the affidavits of the solicitors, Anthony Porthouse and Khaled Kheir, to be a full explanation of the actions of the plaintiff and those working on his behalf in relation to the proceedings.

34. Further, I accept that the explanation provided is a satisfactory explanation of the delay in commencing the proceedings. As earlier stated, the delay was almost entirely caused by the inability to obtain appropriate medical evidence in these proceedings. That difficulty is exacerbated by the impecuniosity of the plaintiff and his family and the reliance by them on the generosity of the legal representatives acting on their behalf.

35. The defendant raises, by way of shortcoming in the explanation provided by the plaintiff, two issues. The first is the failure to explain the lack of communication by the plaintiff's solicitors with the defendant's solicitors between February 2007 and November 2010. The second shortcoming is the allegation that there has not been a satisfactory explanation for the delay in obtaining medical evidence.

36. In my view there has been a satisfactory explanation for the delay in obtaining medical evidence. Contact with medical practitioners was regular and difficult. The difficulty was exacerbated by the opinion of a number of medical practitioners who were sought to be qualified that the subject accident was not likely to be causative of the plaintiff's disabilities. Otherwise the delay is explained by impecuniosity and the reliance upon the solicitors to obtain, at their cost, the qualified medical reports. It is both reasonable and appropriate that a person in the position of the plaintiff, and, if it be necessary a person in the position of the plaintiff's mother and tutor, to rely on the legal representatives and suffer any delay because of the incapacity and impecuniosity.

37. In my view, the delay of some six years from October 2004 to October 2010 (being the period between the date upon which Mr Boyd first sought to qualify Dr McMaster-Fay and the date when Mr Porthouse conferred with Dr Harbord), during which six medical experts were consulted or qualified, is satisfactorily explained by the small number of experts in the field, the smaller number who were prepared to give an opinion, and the impecuniosity of the plaintiff.

38. In addition to the affidavits of the tutor Halima Zraika, the mother of the plaintiff and the affidavits of the solicitors, Anthony Porthouse and Khaled Kheir, the full and satisfactory explanation derives from an analysis of the chronology recited at [4] herein, which discloses regular contact between the legal representatives and medical practitioners, some of whom, in order to be qualified, required payment in advance.

39. A full and satisfactory explanation is a necessary condition for the grant of leave but, without more, it is not sufficient for the grant. As s 109(3) of the Act makes clear the Court is prohibited from granting leave unless a full and satisfactory explanation for the delay is given. Nevertheless the Court is required to deal with the grant of leave under s 109(1) of the Act and, for that purpose, to take into account matters that would otherwise be relevant to the grant of leave for such purposes, including prejudice to the defendant.

40. Moreover, during the first three months of the three-year period, mainly before the plaintiff was born, it would not have been apparent that any injury would have been suffered from the motor vehicle accident. Further, the extent and nature of the injuries suffered and the profoundness of those injuries would not have been apparent immediately at birth. Although, given the seriousness of the injuries there would have been some evidence of that. Nevertheless a period of time must be allowed during which the plaintiff (and his tutor) would comprehend the full nature and extent of the injury.

41. While there are periods during which the plaintiff could have acted more expeditiously, there is, as is obvious from the chronology, no extended period of time during which no activity occurred.

42. As a consequence of the foregoing, the Court considers that there has been a full and satisfactory explanation by the plaintiff for delay in the commencement of the proceedings. That full and satisfactory explanation is based upon a full account of the conduct including the actions and knowledge of the plaintiff from the date of the accident until the date of providing the explanation. It is full and satisfactory because a reasonable person suffering these disabilities, both medical and age related, would have been justified in experiencing the same delay: see s 66(2) of the Act.

43. Even though the beliefs of the plaintiff are not evidenced, the explanation is full. Those beliefs are incapable of explanation on account of the incapacity of age and disability and the combination of the two.

Prejudice

44. The first matter raised by the defendant as a shortcoming in the explanation is the failure by the plaintiff's solicitors to communicate with the defendant's solicitor between February 2007 and November 2010. That delay is not and was not causative of the delay in the commencement of the proceedings. It is a delay or an issue that goes to the prejudice of the defendants in having to meet a claim now of which they were hitherto unaware.

45. The prejudice suffered by the defendant falls into two categories. First there is the prejudice alleged by virtue of the delay and inability to garner evidence at an earlier time. Secondly, there is the prejudice suffered by the defendant's alleged inability to cross-claim against others who may have been at fault.

The delay in gathering medical evidence

46. Dealing with the first prejudice expressed by the defendant, namely the inability to obtain medical evidence thus far, to a large degree that prejudice is overcome by the burden of proof and the particular facts in this case. It will be for the plaintiff to prove that the injuries suffered were caused by the motor vehicle accident. In order to satisfy that task, the plaintiff relies on Dr Harbord, who examined the notes at birth and investigations that are detailed in his report.

47. Dr Harbord did not base his opinion, nor, it seems, could he have, on an examination of the plaintiff between the examinations immediately or soon after birth and the examinations of the plaintiff in his present condition.

48. Dr Harbord's opinion is based upon the original MRI films and CT scans taken at or about the time that the plaintiff was born and all of the material upon which Dr Harbord based his opinions, being opinions in favour of the causative effect of the motor vehicle accident, are available to the defendant. In that sense the defendant is in no worse position than the plaintiff. Moreover, the plaintiff has made available to the defendant those medical reports that were inconsistent with the interests of the plaintiff.

49. The affidavit evidence of the defendant does not suggest that the inability to conduct a medical examination of the plaintiff at an earlier time was a prejudice to the plaintiff in the way in which these proceedings would be conducted and, when asked, Mr Khoury stated that he did not claim that it was a disadvantage to the defendant in the conduct of any proceeding because the plaintiff was not medically examined earlier (transcript page 99). Partly that is due, on the material before the Court, to the nature of the injuries and the inability, in ordinary circumstances, to obtain evidence other than that which is already available.

50. It does not seem, on the evidence before the Court, that the delay in commencing the proceedings has caused the defendant any prejudice by reason of the defendant's inability to adduce evidence on the question of whether the motor vehicle accident caused the injuries of the plaintiff.

The defendant's alleged inability to cross-claim

51. The second question is more difficult. The defendant relies upon the provisions of s 26 of the Limitation Act 1969, which is in the following terms:

" 26 Contribution between tort-feasors

(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of:

(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and

(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.

...

(3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment (including an enactment repealed or omitted by this Act) for the cause of action for the liability in respect of which contribution is sought.

(4) Nothing in this section affects the construction of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ."

52. I have omitted s 26(2) of the Limitation Act because it deals with the date upon which the cause of action for contribution first accrues and defines it as the date of judgment in, relevantly, a civil action, or in the absence of a judgment, the date on which a settlement agreement is reached. Nevertheless, the defendant alleges that the provisions of s 26(1) create a difficulty because the defendant is no longer able to seek contribution from other parties whose negligence has been causative of the injury. In particular, the defendant refers to the RTA and, to a lesser extent, the occupier of the premises from which the defendant's vehicle exited.

53. It is necessary to set out some of the circumstances of the accident. The accident was caused when the defendant's vehicle exited an industrial site through gates onto the roadway at a point, which was controlled by traffic lights. The traffic lights controlled the passenger vehicles at a "T" intersection when entering or exiting any public street, but did not control the entry to or exit from the industrial/commercial premises from which the defendant was driving. Those premises (or more accurately the gate from which the defendant was driving) were located at the "T" intersection directly opposite the terminating roadway.

54. The defendant says that it was negligent for the RTA to have installed traffic lights, knowing that the premises had a significant amount of traffic, without controlling the entry and exit to the premises with those lights.

55. Further and in the alternative, the defendant alleges that it was negligent of the RTA and/or the occupier not to have placed signage of better quality and in a better location (or appropriate traffic impediments) that would have either prevented the defendant from driving across the roadway to the far side of the traffic lights or required the defendant to turn left when exiting the premises.

56. There was evidence before the Court of some signage that required the defendant to turn left when exiting the premises. The defendant instead, proceeded across five lanes of traffic and collided with the vehicle in which the plaintiff's mother and father were travelling (the mother then being twenty-five weeks' pregnant with the plaintiff) in the sixth lane of traffic travelling at right angles to the exit from the premises. As a consequence of the foregoing, if the defendant were liable to the plaintiff for damages, the defendant alleges that contribution is due from either or both the RTA and the occupier of the premises.

57. I turn to the construction of the terms of s 26(1) of the Limitation Act . The terms of s 26(3) of the Limitation Act make it clear that the "limitation period for the principal cause of action" means the limitation period fixed by or under the Limitation Act or by or under any other enactment for the cause of action for which contribution is sought.

58. As a consequence, the limitation period for the principal cause of action is said to be the three-year limitation period imposed by the Act. On that basis, s 26(1) of the Limitation Act would provide for the cause of action for contribution to expire two years from the determination of the negligence of the defendant under the Act (if proceedings were commenced) or four years from the expiration of the limitation period for the taking of proceedings under the Act, whichever occurred first.

59. If, as is suggested by the defendant, the limitation period for the Act were three years (see s 109 of the Act), the limitation period for a proceeding seeking contribution from another joint tortfeasor is seven years from the date of the accident, being seven years from 16 November 2002, which expired on 16 November 2009.

60. If this were so, it is a significant prejudice to the defendant, assuming the defendant is able to show a significant contribution by another tortfeasor or arguably significant contribution by an arguably negligent tortfeasor. If it were an incident of the interrelationship between the Act and the Limitation Act , that in granting leave to commence proceedings at a particular time, the defendant would be denied the ability to sue a significant joint tortfeasor with a significant liability to the plaintiffs, the prejudice to the defendant would be obvious and significant: Creevy v Barrois [2005] NSW CA 264; Tekno Ceramics Pty Ltd v Milat [2003] NSWCA 254.

61. In Creevy , supra, Basten JA sought to overcome the prejudice by suggesting, the possibility, without finally deciding, that the grant of leave to commence out of time rendered the provisions of s 26(1)(b) of the Limitation Act inoperative and the only resulting limitation was one that applied by virtue of s 26(1)(a) of the Limitation Act . It seems from a proper reading of Creevy that, to the extent that Basten JA decided the issue (which in my view he did not), the majority Handley and McColl JJA were of a different view (or were not prepared to decide the question at all) as a consequence of which the judgment is not authority for such a proposition.

62. There is an odd and, in my view, unintended consequence of the interrelationship between s 26 of the Limitation Act and the shortened limitation period in the Act. Ordinarily the limitation period for a personal injury claim would be three years after the discovery of the cause of action (or 12 years otherwise) under s 50C of the Limitation Act . In the case of plaintiffs under a disability (of age or mental capacity), the prescribed limitation period is suspended for the period of the disability (s 50F of the Limitation Act ).

63. As a consequence of that situation, in the ordinary case, the primary source of the limitation prescribed by s 26 of the Limitation Act is that found in s 26(1)(a) and the description in s 26(1)(b) was intended as a failsafe directed to circumstances where the primary proceedings had not concluded within 7 years of the "principal" cause of action accruing. Prior to the promulgation of s 50C of the Limitation Act that period would have been 10 years and the relationship more obvious.

64. An interesting aspect of s 26 is that it may apply to a cause of action under s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. That provision applies not only to contribution from one tortfeasor to another, but also to multiple proceedings brought by a plaintiff against multiple tortfeasors.

65. Let us assume that the plaintiff sued both the defendant and the RTA (or any other alleged tortfeasor), under what statutory scheme would that cause of action be commenced? Section 3A of the Act makes clear that the Act applies only in respect of injury to a person caused by the fault of the owner or driver of another motor vehicle in the use or operation of the vehicle if injury is caused by the driver of the vehicle. A cause of action by the plaintiff against the RTA (assuming for this purpose that the RTA were alleged to be negligent) would not be a cause of action capable of being brought under the Act, unless it can be said that if both the defendant and the RTA were negligent then each cause of action would be required to be commenced and pursued under the Act. That is an unlikely proposition.

66. Assuming for present purposes that the driver of the vehicle, in this case the defendant, was not at fault and only the RTA was at fault, then the injury would not have been caused (assuming causation) by the fault of the owner or driver of a motor vehicle in its use or operation, even though the injury was caused by a motor vehicle. As a consequence, proceedings by the plaintiff against the RTA would be governed by the limitation periods prescribed in the Limitation Act . In those circumstances, the limitation period for the plaintiff to sue the RTA would not have yet expired.

67. If one then construes s 26 of the Limitation Act on the foregoing basis, a significant question arises as to what is the "principal cause of action" for which contribution is sought. Is contribution, in those circumstances sought for a claim under the Act or is contribution sought for negligence to which the Limitation Act applies?

68. Plainly and expressly, s 26 of the Limitation Act applies to a cause of action for contribution under s 5(1) of the Law Reform (Miscellaneous Provisions) Act. As a consequence, s 26 applies to proceedings under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act , which is the only reference to "contribution". But the "cause of action for contribution" is a statutory cause of action, not an action at common law.

69. The "contribution" is a contribution to the damage, not the other cause of action. Taking a purposive approach to the construction of s 5 of the Law Reform (Miscellaneous Provisions) Act (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 ), s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act is plainly intended to allow a defendant to effect that which the plaintiff could otherwise effect under the common law and by virtue of the provisions of s 5(1)(a) and (b).

70. Ultimately, the question depends on the construction of the term "the liability in respect of which contribution is sought" in s 26 of the Limitation Act . As earlier stated, contribution is sought (and allowed) for damage, not the cause of action. Liability, in that situation, is the liability for damage. It seems, therefore, that "the principal cause of action" may have two possible meanings: first, the cause of action maintainable between the plaintiff and the defendant under which the liability of the defendant arises; or, secondly, the cause of action maintainable between the plaintiff and the joint tortfeasor from whom contribution is sought under which liability to pay damages to the plaintiff would have arisen.

71. In the present proceedings, liability of the RTA to the plaintiff for damage could not be based on, nor sought from the RTA under, the Act; liability would be based on and sought under the general law of negligence. The contribution is the contribution to the amount of damages under different causes of action. If the liability in respect of which contribution is sought were the liability of the joint tortfeasor to the plaintiff, then the meaning of s 26(3) of the Limitation Act has a significantly different effect and the limitation period of four years runs, not from the three years under the Act, but from the date set by the Limitation Act itself.

72. Of course, that will not always be the case. For example, there could be a three-car collision in which the plaintiff, for reasons which are explained satisfactorily and fully, commences proceedings after the three year limitation against only one of the other drivers. But in such a case, it would be difficult to conceive that the defendant could not fully and satisfactorily explain any delay in commencing proceedings against the joint tortfeasor and that may provide an answer. It is unnecessary to determine that question, and it may depend o the existence of an injury to the defendant.

73. Notwithstanding the foregoing, the weight of authority seems to have assumed that the "principal cause of action" in s 26(1)(b) is the cause of action between the plaintiff and the defendant and not the cause of action between the plaintiff and the joint tortfeasor. Such a construction would result in a situation where the plaintiff, in the present circumstances, could commence proceedings against the joint tortfeasor at this stage, but the defendant could not. That seems inconsistent with the plain purpose of s 5 of the Law Reform (Miscellaneous Provisions) Act and s 26 of the Limitation Act . Moreover, the ability to sue a joint tortfeasor would often depend on the unintended happenstance of which tortfeasor was sued first. In this case, if the plaintiff sued the RTA in negligence, s 26 of the Limitation Act would allow the RTA to proceed under s 5 of the Law Reform (Miscellaneous Provisions) Act, notwithstanding the provisions of the Act. That is an even more odd result.

74. As earlier stated, the weight of authority is against (even if only by implication) the construction, which I favour. As a consequence I will deal with the matter on the basis that has been assumed by the Court of Appeal in various cases.

75. The circumstances giving rise to this accident and the liability of the joint tortfeasor are that there was in place a traffic sign which directed all traffic to turn left only. The defendant ignored or failed to notice that sign and proceeded directly across the intersection controlled by traffic lights. In travelling across that intersection the collision occurred with the car in which the plaintiff (as an embryo) was travelling.

76. The claim for contribution against the RTA, as previously explained, depends upon negligence in not controlling the exit from the premises by the same traffic lights that controlled the remainder of the intersection and/or not placing signs at a location at which they were more noticeable and/or taking other steps that would prevent a car from proceeding across the intersection. Nevertheless, the defendant proceeded across the intersection in circumstances where there was a sign, which, if a driver were paying full attention, a driver would have noticed. That is not to say that it was located in the best possible position. Moreover, given the nature and traffic on the intersection, the defendant even without signs would have been required to be extremely careful in proceeding as she did. The foregoing comments are made only on the basis of the interlocutory evidence before the Court at this stage and does not purport to be a determination finally of the relative negligence, if any, of the defendant and the RTA.

77. It seems, on the foregoing basis, if the evidence at final hearing remains as is, that contribution from the RTA, if any, would be of a much lesser amount. The difficulty is that prejudice must be measured by whether it is other than ephemeral and real.

78. Given the level of damage, and assuming causation can be proved, even a contribution of less than 10 percent could be a significant amount of money. If it were possible in those circumstances to take account of the prejudice in the proceedings, such possibility should be explored.

79. On the allegations of the plaintiff, the plaintiff has suffered substantial damage arising out of a motor vehicle accident. There is little doubt that the defendant was at fault (even if others were at fault). There could be no contributory negligence, given the circumstances of the plaintiff at the time of the accident. Notwithstanding the prejudice to the defendant arising from an inability to proceed against joint tortfeasors, if any, it would seem to me that, in the circumstances of this case, leave to commence proceedings out of time should be granted.

80. There is, however, one issue, which needs further exploration.

Generally, the power to perform an act by the Court includes a power to perform it on condition but may not apply in all circumstances. Certainly where the condition is imposed as part of the inherent power of the Court or (if it be different) the power contained in s 23 of the Supreme Court Act 1970, the Court has power to impose conditions on parties where conditions qualify their conduct.

81. Even if, contrary to my preferred view, the "principal cause of action" refers to the cause of action between the plaintiff and the defendant, it is, at least on a preliminary view, arguably, permissible for the Court to impose a condition on the plaintiff, if it were properly drafted, that required the plaintiff to commence proceedings against a third party nominated by the defendant as a condition to the grant of leave to commence proceedings out of time.

82. The condition I have in mind is a condition on the grant of leave to commence proceedings and would be in or to the effect of the following terms:

"Provided that Provided that t the plaintiff shall commence proceedings against any other party nominated (hereinafter "the nominated party") by the defendant and in respect of which an appropriate undertaking as to the costs is given. For these purposes an appropriate undertaking as to costs is an undertaking by the defendant's insurer that it will indemnify the plaintiff against any order to the effect that the plaintiff pay the nominated party's costs, except in circumstances where the plaintiff would be ordered to pay such costs, if the nominated party were to have been joined by the defendant by cross claim under section 5(1) of the Law Reform Miscellaneous Provisions Act ."

83. The parties were asked during the course of these proceedings about the capacity of the Court to impose such a condition. It was dealt with, for obvious reasons, and without criticism of the parties, without full attention. It is appropriate for me to hear from the parties as to the permissibility of imposing such a condition and whether such a condition should be imposed.

84. Further, the parties should be heard on the terms of such a condition, if imposed. For that purpose the proceedings will be adjourned to an appropriate date for the finalisation of orders.

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