Sarah Smith v David
Brown

JUDGMENT

1. This matter came before the court by way of a Notice of Motion filed by the defendant.  The Notice of Motion was filed on 28 March 2018.  On 25 July 2018, at the hearing of the Motion leave was granted by consent for the defendant to rely on an amended Notice of Motion.
2. The Amended Notice of Motion sought the following:
1. The proceedings be dismissed pursuant to section 73(5) of the Motor Accidents Compensation Act 1999 in respect of the failure of the plaintiff to provide a full and satisfactory explanation for her failure to lodge her claim form within 6 months of the date of the accident.
2. The proceedings against the second defendant to be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 as there is no cause of action listed against the second defendant in the Second Amended Statement of Claim.
3. The plaintiff to pay the defendant’s costs of the proceedings.
4. Any orders as the Court deems fit.
3. The plaintiff filed a Statement of Claim on 7 March 2018 and at the hearing of the Motion was granted leave to file a Third Amended Statement of Claim.  This amendment was to remove the second defendant, the owner of the vehicle, from the proceedings.
4. The defendant relied on the affidavit of Ms Nikki Akhurst-Rasa sworn on 28 March 2018.  There was no objection to any part of that affidavit and Ms Akhurst-Rasa was not required for cross examination.  The plaintiff relied on 3 affidavits.  The first affidavit was of the plaintiff sworn on 18 May 2018.  There was no objection to any parts of that affidavit and the plaintiff was cross-examined.  The second affidavit is of the plaintiff’s mother Rochelle Smith sworn on 18 May 2018.  Again, there was no objection to any part of that affidavit and Mrs Ielusig was cross-examined.  The third affidavit is that of Mr David Marocchi, the plaintiff’s solicitor, sworn on 22 May 2018.  There was no object to any part of that affidavit and Mr Marocchi was not required for cross examination although he was present at the hearing.

Background Facts

5. On 22 January 2016 the defendant was the driver of a motor vehicle that had been stolen.  The plaintiff was a passenger and was seated in the backseat wearing a seatbelt.  When the vehicle was travelling in a northerly direction along Showground Road, Gosford, it was being pursued by a police car.  The defendant lost control of the vehicle.  The plaintiff suffered serious injuries as a consequence of that accident.  Exhibit A is photographs of the vehicle and of some of the plaintiff’s injuries.  Two other passengers in the car were also injured.

Chronology

6. The following chronology emerges from the documentation.
7. The plaintiff was born on 14 September 1998.
8. On 22 January 2016 the plaintiff was involved in a motor vehicle accident subject to these proceedings.
9. On 29 January 2016 the plaintiff’s mother, with the assistance of a social worker from the hospital completed an accident notification form on the plaintiff’s behalf (Annexure A, Affidavit of NAR).  That form provided details of the plaintiff’s name and then address, and her date of birth.  The details of the accident itself were provided by way of a police report which was apparently attached.  The notification was accompanied by a medical certificate which gave some detail as to the plaintiff’s injuries.
10. On 19 February 2016 Ms Murphy from the insurer wrote to the plaintiff’s mother (Annexure B, Affidavit NAR).  That letter refers to a telephone discussion and prior letter of 16 February 2016.  It confirms that NRMA Insurance has accepted provisional liability and thus expenses of up to $5000 will be covered.  The letter also states that there is a 6 months’ time limit for lodging a personal injury claim form.
11. On 14 March 2016 an investigator, at the request of the insurer, attended the plaintiff’s home at 1/4 Richmond Mew, Mardi NSW and took a statement concerning the details of the accident (Annexure C, Affidavit NAR).  That statement has been signed by the plaintiff.  It is noted that the plaintiff has been approached by the representative of NRMA “in relation to the matter of Elana Maryanne Ielusig”.
12. At paragraph 4 it is acknowledged that the information obtained may be used by the company in managing

“…the claim, and that other interested parties, including those making the claim or their authorised representatives, may be provided with a copy …”

13. The statement goes through the activities of the plaintiff on the day of the accident, the police pursuit, the accident and its aftermath.  The plaintiff cannot recall the impact but remembers waking up with her legs in the air towards the roof of the car.  She had a lot of pain in her back, legs, chest, head and neck and it took some time for the fire brigade to extract her and the other passengers from the car.  The plaintiff was taken to John Hunter Hospital by helicopter and spent 7 hours in surgery to repair various fractures.  At the time of the statement she was undergoing extensive physiotherapy treatment and had not returned to school.  It is noted in paragraph 48 that her parents were present when she made the statement and that she has read it and understood its contents.
14. In May 2016 the plaintiff’s father’s business closed and he commenced to receive an old age pension.
15. In May 2016, the plaintiff and her family were evicted from their rented home.  The  plaintiff’s mother and father had been spending significant time caring for their daughter and had been unable to pay the rent.
16. On 20 June 2016, the insurer wrote to the plaintiff’s mother advising her that if she wishes to pursue a claim after 22 July 2006 there is a requirement to complete and return a personal injury claim form within 6 months of the accident.  There was a reference to a website and an offer to send a copy of the claim form.  It was also pointed out that if a claim is received more than 6 months from the date of the accident

“… the legislation requires that a full and satisfactory explanation for the delay in lodgement be provided.  If the explanation is found not to be full and satisfactory then you may not be able to claim.”
There was also a request that she sign an authority to John Hunter Hospital on behalf of her daughter (Annexure D, Affidavit of NAR).

17. In June or July, the plaintiff and her family moved and lived for 2 months at her sister’s home.
18. On July or August 2016 the plaintiff and her family move to a caravan park at Canton Beach and lived there for about 2 months.
19. On 23 November 2016 a letter from the insurer to the plaintiff’s mother confirmed that the 6 month period for which the accident notification form was valid had expired on 22 July 2016.  The plaintiff’s mother was advised that if she wished to pursue a claim she should complete and return a personal injury claim form and that the legislation requires a full and satisfactory explanation for the delay and

“if the explanation is found to be not full and satisfactory then Elana may not be able to claim.”

It was noted that if there was no reply by 21 December 2016 the file would be closed (Annexure E, Affidavit NAR).  The letter was addressed to Richmond New, Mardi.

20. On 22 January 2017 the plaintiff underwent surgery to remove rods in both legs.
21. On 21 February 2017 a letter was sent from insurer to plaintiff addressed to C\-1/4 Richmond Mew, Mardi NSW 2259.  This letter refers to the earlier letters and notes a telephone call of 19 December 2016.  It is confirmed that as advised by telephone it is now more than 6 months from the date of the accident and “the legislation required a full and satisfactory explanation of the delay in lodgement be also provided”.  It was confirmed that to date a personal injury claim form had not been lodged and that the file had been closed (Annexure F, Affidavit NAR).
22. In March 2017, the plaintiff and her family moved to 302 Pacific Highway Belmont North.  On 9 October 2017 the plaintiff saw an advertisement for accident compensation and after checking the internet contacted Mr Marocchi.
23. On 11 October 2017 Mr Marocchi telephoned the insurer to enquire as to the status of the claim and was informed that a claim form had not been lodged.
24. On 12 October 2017 the plaintiff’s lawyers write to the insurer asking for information and copies of documents (annexure E, Affidavit DM).
25. On 13 October 2017 there was an email from the insurer requesting an authority before releasing information (annexure E, Affidavit DM).
26. On 18 October 2017 the plaintiff saw Mr Marocchi and was advised of the requirements for the lodgement of a claim.
27. On 23 October 2017 the plaintiff signs the authority.
28. On 24 October 2017 the plaintiff and her mother complete a statement explaining the delay.
29. On 27 October 2017, a letter was sent from plaintiffs solicitor to insurer enclosing claim form, the statement of the plaintiff and her mother and police report (Annexure G, Affidavit NAR).
30. On 17 January 2018, a letter from the defendant’s solicitors to the plaintiff’s solicitors indicated the insurer has not made any section 83 payments.  It also enclosed the statement of the plaintiff dated 14 March 2006 and indicated ‘we are instructed not to provide the remainder of the investigation as it was obtained in anticipation of legal proceedings.”
31. The letter also enclosed copies of the correspondence between the insurer and the claimant’s mother and the claimant referred to above.
32. On 16 February 2018 the principal claims assessor issued a certificate of exemption pursuant to section 92(1)(a) Motor Accidents Compensation Act 1999 (NSW (MACA) entitling the plaintiff to commence proceedings.
33. On 7 March 2018 the plaintiff filed a Statement of Claim in this court.

Evidence

Sarah Smith – Affidavit sworn 18 May 2018

34. The plaintiff deposes that she was a backseat passenger wearing a seatbelt when the accident occurred.  As a result of the accident she suffered bilateral femoral fractures/sacrel fracture, surgical scarring, lumbar spine injury, thoracic spine injury, cervical spine injury, right and left leg injuries and psychological sequelae.
35. At the time of the accident she was 17 years old and subsequently spent many months in hospital and had multiple surgical operations.  She states that at the time of the accident she had no knowledge or understanding of the Motor Accidents Compensation Act and the first time she understood about claims was when Mr Marocchi visited her in October 2017.
36. In evidence in chief the plaintiff confirmed she had read through her affidavit and her statement and they were true and correct.  With respect to the letters from NRMA she said she does not remember receiving such a letter or discussing making a claim with her mother.
37. In cross examination the plaintiff agreed that she was able to give a lucid account of the accident when the investigator called.  The plaintiff initially agreed that she was aware at that time that she was being asked questions about a claim.  The plaintiff explained that she understood the statement was about claims that other occupants were making and the insurer was asking questions about the accident itself.  It was suggested to her that at that time she knew she would be able to make a claim.  The plaintiff said that she was only 17 and was not aware of that.  She explained she was on medication, in a wheelchair, and she was not in a good place.  She stated that she does not recall many things that happened at that time.
38. The plaintiff agreed that she was incurring medical expenses but indicated that she believed she was getting treatment via Medicare.  The plaintiff confirmed that she could not recall discussing making a claim with her mother or discussing or receiving the letters supplied by the insurer.  She could not recall getting any medical bills that had to be paid.
39. The plaintiff was quite blunt when giving answers to questions and clearly resented being asked the same question more than once.  She was unshaken in her evidence that she did not know about the claims for motor vehicle accidents and did not know about time limits on such claims.

Rochelle Smith – Affidavit sworn on 18 May 2018

40. Mrs Ielusig states that her daughter was seriously injured and traumatised by the accident.  Mrs Ielusig was very concerned for her safety and thought she would die.  She states that she was very confused and had no understanding of the CTP system.  She was dealing with many doctors and several social workers, as well is caring for her daughter.  She could not recall what letters she received from NRMA, if any, or what they said.  She could recall that at the request of a social worker at the hospital she completed some forms.  At that time the social worker said she would take care of everything.  Mrs Ielusig said that at the time of signing the form she was not really clear what its purpose was and trusted the social worker.  Her evidence was that she signed whatever forms were put in front of her.
41. Mrs Ielusig gave oral evidence confirming that she has no memory or recollection of receiving the letter, or of ever being made aware of the time limit until she saw Mr Marocchi.
42. Mrs Ielusig explained that at the time she was coping with many personal issues, she had lost her job, the family had to leave their home, and were living with her daughter, and then in a caravan park.
43. In cross examination Mrs Ielusig agreed she was still living at Mardi address in February 2016 but said she could not recall receiving any letters.  She explained that she does not remember everything that happened around that time as her mind was on her daughter.  It was suggested to her that she would have been concerned that the insurance company received a claim form and continued to pay expenses.  Mrs Ielusig repeated and that she was in a bad place time and really does not remember what was happening.  She denied discussing any letters with her daughter.  She said her daughter was having mental health issues at that time.  She maintained that neither her, nor her daughter were in the right state of mind to deal with such issues.  Her concern was with her daughter’s physical and mental well-being.  The accident had been unexpected and she was aware the NRMA was an insurer but not about the need to give information and complete paperwork.
44. Mrs Ielusig agreed that she had to complete numerous forms before her daughter had surgery but she could not recollect the details of those forms.  She agreed that the social worker had assisted her, but maintains she had no recollection of being aware of time limits.
45. Ms Ielusig was obviously distressed and very nervous when giving evidence.  She presented as someone who was quite anxious and who appears to have some difficulties understanding the process in which she is caught up.  Her answers continually returned to explaining that she was focused on her daughter at the time.

David Marocchi – Affidavit sworn 22 May 2018

46. As noted above Mr Marocchi, although present in court was not required for cross examination.  In his affidavit he made the following observations (at paragraphs 5-6):

“when I met Elana, I immediately formed the view that she and her mother, at the time of the accident, did not understand Elana’s rights and entitlements for compensation for injuries she suffered in the accident.
I also formed the view that they clearly did not understand that a claim form had to be lodged within 6 months”

47. Mr Marocchi then provides a chronology of preparing the documents and sending them to the insurer.
48. At paragraph 16 he observed

“at the time of taking initial instructions Elana and her mother could not remember if they had provided statements, particularly Elana was unable to recall and she said words, whilst she was in tears, to the following effect:
David, I have had so much going on in my life that I truly do not remember”

49. Mr Marocchi provided copies of the letters to his client after he received them and noted that she could not recall receiving the correspondence, particularly the letter of 21 February nor a telephone discussion.  He was instructed by the plaintiff that she had had various telephone calls from NRMA but could not recollect what each call was having received calls from various rehabilitation providers claims officers and others.

Submissions

50. Mr O’Dowd who appeared on behalf of the defendant applicant submitted that the plaintiff had failed to supply a full and satisfactory explanation.  He pointed out that the plaintiff did not say that because the car was stolen she was uncertain that a claim could be made.  Such an excuse may have been plausible and logical in the circumstances.  It was said that it was unbelievable that all the correspondence had gone astray and it was clear the insurer communicated to her that the file would be closed.
51. It was noted that although Mrs Ielusig had apparently recalled when making her affidavit that a social worker had assisted her to complete a notification of accident form, her evidence now is that she cannot even remember that.  It was pointed out that the plaintiff’s mother had continuing involvement with the insurance company which as tied up with obtaining medical treatment.  It was said that the court would not accept the explanation of the plaintiff’s mother was truthful and find that it was not full and satisfactory.
52. It was pointed out that the plaintiff was able to provide a detailed statement about the accident in the context of mention of a claim being made and she therefore must have known she had a right to make a claim.  It was submitted that if the plaintiff and/or her mother had said ‘I did know but I forgot to do it on time because I was busy” that might have provided an explanation.  It’s was said the court would not accept that neither the plaintiff or her mother remembered this correspondence.
53. Mr Hughes SC who appeared with Mr Meakes submitted that the court had heard the plaintiff give evidence and would accept the truthfulness of what she said.  Reference was made to paragraph 20 of her statement which indicated that the family had moved away from the address in Mardi in May or June 2016.
54. It was said the court would accept the explanation that the plaintiff could not recall receiving that document and could not recall any conversations with her mother where she was advised as to time limits.  It was pointed out that the insurance company had notice of the claim due to the document filed with the assistance of the social worker.  It was conceded by Mr O’Dowd that there was no actual prejudice caused by the delay.
55. It was pointed out that the plaintiff was only 17 years of age and received serious injuries.  The insurer had obtained a statement from the plaintiff and therefore had details about the circumstances of the accident that the plaintiff said she was unaware that the car had been stolen.
56. It was pointed out that the plaintiff has received ongoing treatment and has still not been able to find any employment.  It was said the Court would accept her as a witness of truth.  It was submitted that her mother was doing her best, but unfortunately this did not result in the plaintiff being aware of the requirement to lodge a form within 6 months.

Legislation

57. Section 73 of MACA. Subsection 1 provides that a claim may be made more than 6 months after the relevant date “if the claimant provides a full and satisfactory explanation for the delay in making a claim.  The explanation is to be provided in the first instance to the insurer.”
58. Subsection 5 provides that the insurer may apply to the court to have proceedings which are commenced on a late claim dismissed.  This application must be made within 2 months after the Statement of Claim is served on the defendant and received by the insurer.
59. Subsection 7 provides the court must dismiss the proceedings unless “satisfied the claimant has a full and satisfactory explanation for the delay in making a claim.”
60. In relation to the meaning of a “full and satisfactory explanation”, regard must be had to section 66(2) of the MACA which provides:

“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.”

61. The construction of sections 66 and109 of the MACA were considered by a bench of five of the Court of Appeal in Walker v Howard [2009] NSWCA 408 (“Walker”).  Section 109 is similar to section 73.  The court’s decision resolved a number of conflicts in the authorities up until that time and established the following propositions:
1. The two sentences of section 66(2) should be read together as a composite whole intending to give content to the notion of full and satisfactory explanation;
2. The claimant providing the requisite explanation must address acts and omissions relevant to delay ‘from the date of the accident until the date of providing the explanation”
3. The attributes of the “full and satisfactory explanation” in the first sentence of section 66(2) do not mean that the word “claimant” is any broader than its defined meaning.  The claimant is responsible for providing the explanation.  The explanation should cover the conduct of agents such as solicitors;
4. The meaning of “full” in section 66(2) is to be understood in the context of the purpose of the provision and the explanation, that is, to enable the court to evaluate the reasons for the delay.  All relevant information to that end is required;
5. The test of satisfactoriness in the second sentence of section 66(2) is the operative standard that is, it is required to be sufficient, not perfect;
6. The “position of the claimant” is a concept which brings the circumstances of the claimant into objective analysis.  The objective assessment may be affected by how others have acted and who those others were; and
7. The provision does not call for perfection or for the recounting of every moment that has elapsed.  What is required is an explanation for the delay from the time of the accident.
62. In Lyu v Jeon [2012] NSWCA 446, Meagher JA, with whom Macfarian JA and Davies JA agreed, confirmed at [24] that “what will constitute justifiable delay on the part of the reasonable person… is to be considered in the light of the legislative purposes of the MAC Act…Those purposes include encouraging the early investigation, assessment and resolution of claims so as to advance the interests of the claimants in having prompt treatment and rehabilitation…”
63. In providing an explanation, it is important that a claimant not “pick and choose” the information to be given which is relevant to the delay (Mancini v Thompson [2002] NSWCA 38 at [46]).
64. In Nominal Defendant v Browne [2013 NSWCA 197, Basten JA, with whom the court agreed, said at [21]: “…But an explanation may not be “full” if it does not provide some detail as to the instructions given to, and the advice received from, solicitors…”
65. The onus of providing the explanation for the delay and persuading the court that the explanation is both full and satisfactory rests on the plaintiff (Smith v Gran (2006) 67 NSWLR 735 at [12]).
66. The Court of Appeal considered what is meant by a “reasonable person in position of claimant” in a number of cases including Walker.  The court held in that case that the position of the claimant with a legal or fiscal disability include that disability.  Allsop P explained at [68]:

“…That placement of a fictional person in that position [the claimant’s position] can be seen as a means of stating that the court can grant leave if it is reasonable to conclude that the delay was justifiable given this claimant’s position.”

67. Paragraph [69] of Walker is also relevant:

“The phrase “position of the claimant” is not limited in terms to the personal or physical characteristics of the claimant.  It connotes aspects of place and circumstance relevant to the enquiry.  It is not possible or desirable to seek to identify all the possible characteristics of the claimant that the phrase “in the position of” implies.

68. In a separate judgment, Young JA expressed the view that the attributes to be transferred to the hypothetical reasonable person in the position of the claimant include age, sex and capacity of the complainant as well as his or her cultural background at least within limits” (at [138]).
69. The court must be conscious of not attributing the hypothetical reasonable person with so many of the characteristics of the individual claimant as to displace the ordinary person test altogether (Walker at [141] per Young JA).
70. The court must place “the hypothetical reasonable person not only in the shoes of the claimant but also with his abilities and disabilities and in his home surrounded by his or her friends and relations” and the capacity, ability and willingness of those friends and relations to assist (at [149]).

Consideration

71. The plaintiff is now 20 years of age.  This accident occurred when she was 17 years old.  An explanation was first provided in her statement of October 2017.  The primary period of 6 months expired on 22 July 2016.  There is therefore a delay of approximately one year and 3 months.
72. At the time the accident occurred the plaintiff was a school student who lived with her mother and father.  She was seriously injured as a result of the accident which occurred in somewhat unusual circumstances.  I accept that the plaintiff was that time very young and seriously injured.  Not unreasonably she relied on her mother to act on her behalf.  I accept the evidence of the Plaintiff’s mother that she was unfamiliar with the requirements of MACA.  I accept that the plaintiff was similarly on familiar with the provisions.
73. From the time immediately after the accident until today, the plaintiff has been focused on the treatment and recovery.  There is a claim for psychological sequelae as a result of the accident.  No medical evidence of this is currently available.  The plaintiff’s mother gave evidence that her daughter was in a fragile mental health and that would not be surprising giving the circumstances of this accident.  This evidence was not challenged.
74. The plaintiff was young at the time and naturally relied on the assistance of her mother.  Her mother has provided an affidavit and was cross-examined.  Mrs Ielusig explains that her focus was on her daughter’s mental and physical well-being.  It is possible that she did not receive all the letters sent by the NRMA but I accept she was aware they were involved in some fashion.
75. The actions taken by the plaintiff’s mother seems to have been to sign forms that were provided to her particularly by social workers.  The plaintiff continued to receive treatment including surgery.  There is no suggestion that the plaintiff’s mother sought or received any legal advice prior to her daughter approaching Mr Marocchi.  No doubt, Mrs Ielusig could have done more to assist her daughter to comply with the requirements of MACA.
76. I accept her explanation that although she may have received some, or perhaps all of the correspondence from the insurer she simply was unable to process it.  For whatever reason I accept that the plaintiff’s mother did not advise the plaintiff of the six month time limits.
77. The plaintiff is no longer under a legal disability and she is the claimant.  The test to be applied is whether a reasonable person in her position would have been justified in experiencing the same delay.  The plaintiff states that she cannot recall receiving the letter from NRMA dated 21 February 2017, nor any telephone conversation that took place on 19 December 2016.  That letter is addressed to the old home in Mardi.  Even if received, it did no more than inform her that it was more than 6 months from the date of the accident and that legislation requires a full and satisfactory explanation for the delay in the lodgement.  It did not point out any consequences.  Nor did it advise the plaintiff to seek legal assistance if she wished to bring a claim for compensation for her injuries.
78. I find a reasonable person in the position of the plaintiff would have been justified in experiencing the delay.  The plaintiff was young and suffered serious injuries.  She was receiving treatment and had been relying on her mother who was unfortunately also legally inexperienced.  After she consulted Mr Marocchi she promptly completed the claim form and provided an explanation for the delay.
79. There is no suggestion of any actual prejudice.  The plaintiff gave the insurer a detailed statement as to the circumstances of the accidents.  The police and ambulance attended the accident and no doubt it was factually examined at that time.  The plaintiff has been receiving treatment and rehabilitation.  According to correspondence from the Defendant’s solicitors there are no s83 payments.
80. The plaintiff’s explanation is that she relied on her mother and then Mr Marocchi.  No complaint is made about the speed or progress in the matter once it was placed in the hands of Mr Marocchi.
81. I find the explanation offered by the plaintiff’s is full and that it covers the entire period from the date of the accidents until the date of the defendant making this application.  I find a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.  In this matter the plaintiff’s mother had completed a notification of accident form which contained a good deal of the same information that would be provided in the claim form.
82. I therefore decline to make order 1 as sought in the Notice of Motion.  I understand order 2 is no longer pressed and I order the costs be costs in the cause.