Hunter v Roberts

1. [1]

   MEAGHER JA: The applicant, Ms Hunter, was seriously injured in a single vehicle accident which occurred on 28 March 2013 on the Parkes Eugowra Road between Forbes and Eugowra. She gave notice of her motor accident claim to NRMA Insurance (NRMA) first on 10 February 2014 and then on 3 March 2014. Such notice should have been given by 28 September 2013, 6 months after the date of the accident, as required by Motor Accidents Compensation Act 1999 (NSW), s 72(1). On 18 March 2014, NRMA rejected that “late claim” and requested the applicant provide “a full and satisfactory explanation” for her delay (s 73(4)). Thereafter the applicant attempted in various ways to give such an explanation, but not before there was further and lengthy delay, providing a statutory declaration of her mother on 8 December 2015, her statutory declaration on 1 March 2016, an affidavit in the underlying proceedings sworn 11 October 2016, and evidence in cross-examination on 8 May 2017.

2. [2]

   The applicant commenced her proceedings in the District Court against the respondent, Mr Roberts, as driver of the vehicle on 24 March 2016. There remains a large issue as to who of those two parties was driving the vehicle at the time of the accident. In her first claim form dated 3 February 2014 the applicant, having identified the respondent as a witness and the “other victim”, wrote “I was heading towards Parkes. I am not entirely sure who was driving”. In her second claim form dated 3 March 2014 she identified herself as passenger and wrote that the “accident occurred because [of] the negligent driving of my ex-boyfriend (Jonathon Roberts)”.

3. [3]

   The NRMA then applied by a motion filed 28 June 2016 to have those proceedings dismissed on the ground of delay (s 73(5)). On such an application, “the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim” (s 73(7)). The primary judge (Wass SC DCJ) acceded to the NRMA’s application, dismissing the proceedings and ordering that the applicant pay the respondent’s costs: Kelly Emma Hunter v Jonathan Luke Roberts (District Court (NSW), 23 March 2018, unrep).

4. [4]

   The applicant seeks leave to appeal from that interlocutory judgment pursuant to Supreme Court Act 1970 (NSW), s 101(2)(e) and an extension of the time in which to do so under Uniform Civil Procedure Rules 2005 (NSW), r 51.9(1)(b). On 8 November 2018 an order was made that the application for leave to appeal and appeal be heard concurrently. The application for the extension of time is not opposed, and that extension is granted on the undertaking of the solicitor for the applicant not to make any claim for or recover the costs of and incidental to that application. For the reasons which follow, leave to appeal should be granted and the appeal allowed.

A “full and satisfactory” explanation

1. [5]

   The requirements for such an explanation are sufficiently summarised in my judgment (Basten JA and Simpson J agreeing) in Karambelas v Zaknic (No 2) [2014] NSWCA 433:

Factual background

1. [6]

   The applicant was 21 years old at the time of the accident and is a trained hairdresser, having left school at the age of seventeen with her School Certificate. At that time she lived in Parkes with her sister and a friend. She was discharged from hospital following the accident on 1 April 2013 and between then and May 2014 received treatment as an outpatient on a number of occasions. The injuries she sustained included a subgaleal haematoma, fractured nose, fractured orbit around her right eye, pelvic fracture, fractures to the left and right wrists and lacerations to the face and scalp. In January 2014 she continued to be unfit for work.

2. [7]

   Around 30 June 2013 she discussed with an uncle the possibility of making a motor vehicle claim in respect of her injuries. In late 2013 she decided to take further steps to inquire about the claim process, understanding that she might have a right to make a claim but not knowing how to do so. In November or December 2013 her mother phoned the NRMA and as a result the applicant was sent a claim form to complete. In order to do so she had to obtain a medical certificate from her treating doctor. The completed claim form was dated 3 February 2014 and submitted a week later. On 13 February 2014 she spoke to an officer of the NRMA via telephone, and was advised that her claim would be rejected. There is no suggestion in the evidence that the NRMA had at any earlier point in time told her or her mother of there being any time limitations in which to lodge notice of her claim.

3. [8]

   The applicant then approached a Legal Aid office and was referred to Gerard Malouf & Partners, whom she first consulted on 26 February 2014. On the same day she received a text message from a Mr Harris informing her that the respondent had admitted to him that he was driving the vehicle at the time of the accident. The second claim form was then completed and lodged on 3 March 2014. The NRMA rejected that claim by letter dated 18 March 2014, and at the same time requested that the applicant provide a “full and satisfactory explanation for the delay in making the claim” which “should be in the form of a signed statement”.

4. [9]

   The sequence of events after March 2014 during which the applicant provided further information to the NRMA is somewhat tortuous. On 21 March 2014 those solicitors advised the NRMA that the applicant was “currently attending to preparing a statutory declaration”. However such a declaration was not provided by the applicant until 4 March 2016. In the intervening period the applicant in April 2014 provided a statement about the incident to an investigator retained by the NRMA; and in December 2015 the applicant’s mother provided a statutory declaration which the NRMA subsequently rejected as being “neither full nor satisfactory”.

5. [10]

   Its reasons for doing so, advised by letter dated 4 February 2016, included that there was no explanation as to what caused the applicant to attend the solicitors to obtain advice, as to the content of the advice provided, or as to the delay in the action taken by those solicitors. These matters were substantially addressed by the affidavits of the applicant’s solicitor, Mr Bechara sworn 4 May 2017 and 5 May 2017, to which were attached the communications between the law firm and applicant, and the correspondence between that firm and the NRMA.

6. [11]

   In cross-examination the applicant was questioned about the period from June 2013 to February 2014 and why she had not pursued the making of a claim more promptly, explaining in response:

7. [12]

   Later in answer to a question directed to the time she had taken to give an explanation for that delay, she stated:

The decision of the primary judge

1. [13]

   Having recited much of this history, the primary judge summarised the applicant’s explanation for her delay in making the claim:

2. [14]

   Her Honour accepted that up until 30 June 2013 the applicant had provided a full and satisfactory explanation for not by then having made that claim, observing that she “was struggling physically and emotionally and did not know her rights to claim”: Judgment [81]. Her Honour then focussed on the period from 30 June 2013 until February 2014. It is convenient to set out her consideration of what occurred in this period:

3. [15]

   Having then traversed the events of February and March 2014 – including the applicant’s attending upon Legal Aid who referred her to compensation lawyers, first contacting Gerard Malouf & Partners, and then receiving advice as to the need to provide a full and satisfactory explanation – the primary judge concluded:

Disposition of the application for leave, and the appeal

1. [16]

   The proposed grounds of appeal challenge the primary judge’s conclusion on two bases. First, it is contended that, having correctly identified at Judgment [13] and [14] the requirements of a “full and satisfactory” explanation, her Honour did not apply that test (proposed grounds 3 and 8). Secondly, it is contended that in considering whether the applicant’s explanation for the delay in making the claim was satisfactory, her Honour made material errors of fact (proposed grounds 2, 5, 6 and 7).

2. [17]

   It is common ground that if errors of either kind are established, this Court should deal with the question whether the applicant has a satisfactory explanation, there being no findings as to her credibility which might prevent it from doing so.

3. [18]

   In my view the principal challenge to her Honour’s conclusion should be upheld. The relevant test directs attention to whether a hypothetical reasonable person “in the [applicant’s] position” would have experienced the same delay. Here that delay was a period of 4 months and 14 days from 28 September 2013. As Hodgson JA (dissenting in the result) emphasised in Russo v Aiello [2001] NSWCA 306 at [17] there is “a substantial spectrum of reasonableness” and accordingly “it is sufficient that there is a hypothetical person within that spectrum who would have experienced the same delay”. The test does not require a claimant to establish that all “reasonable” persons within that spectrum would have experienced the same delay.

4. [19]

   In the analysis at Judgment [90] the primary judge did not consider, by reference to an objective standard of reasonableness, whether given the findings she had made regarding the applicant’s position, the delay which occurred was justifiable. That exercise necessarily requires close attention to the knowledge and circumstances of the claimant. As in Karambelas v Zaknic (No 2) at [34], here those circumstances included that the applicant “did not understand that she had to lodge the claim form within the six months, or as soon as possible thereafter, to secure her entitlement to claim at any time any damages whatsoever in relation to the motor accident”. That meant, as was there observed, that “she did not appreciate that by not completing and returning the form she was putting at significant risk her right ever to make a claim”.

5. [20]

   Looking at the position in the second half of 2013, the primary judge considered the applicant should have taken “reasonable steps to find out what the [claim] process was”: cf. Judgment [89]. Her Honour did not regard as a reasonable explanation for the delay that, as she observed at Judgment [87] and [96], during that period the applicant had “prioritised her recovery over taking any steps to enquire about a claims process”. However the question at that point was whether a reasonable person, with the applicant’s age and life experience, who did not appreciate that by not formally pursuing her claim she was putting at risk her right ever to make such a claim, would have taken steps at that time to understand what the claims process was. The applicant’s conduct in making enquiries with the NRMA in late 2013 did not reflect any earlier understanding as to the significance of making a claim, she having pursued those enquiries because her injuries were not improving, and she was unable to work and concerned about her future employment prospects.

6. [21]

   Turning to the argument that there were material errors of fact, it is conceded that the primary judge erred in finding that in the six months or so after June 2013 the applicant was attending TAFE: see Judgment [86], [92]. That finding was made in support of her Honour’s conclusion that the applicant acted unreasonably in not making enquiries about and pursuing her right to claim from June 2013, and particularly after her mother had obtained a copy of the claim form in November or December 2013. The primary judge reasoned that, notwithstanding that the applicant was struggling physically and emotionally, if she was capable of attending TAFE, she was also capable of making inquiries about her right to claim.

7. [22]

   It is also conceded that her Honour’s finding at Judgment [93] that the applicant had not read the front page of that claim form was not available. The primary judge reasoned that if she had read that page the applicant would have known of the requirement to make a claim within 6 months. However the applicant was not questioned about this subject and it was never put to her that had she been acting carefully and with regard to her interests she would have read that part of the form. Each of these findings was material to her Honour’s conclusion that the applicant had not given a “full and satisfactory” explanation.

8. [23]

   This makes it necessary for this Court on this appeal by way of rehearing to consider whether the requirements for a “full and satisfactory” explanation are satisfied. Accepting that the relevant explanation was not provided until the hearing in the District Court, the period in relation to which the applicant was required to give a full account of her conduct was from the date of the accident to the conclusion of that hearing. The respects in which the NRMA contended that the applicant’s earlier explanations were deficient were identified by the primary judge at Judgment [69] and [75]. Those explanations were supplemented by the affidavit evidence filed in answer to the NRMA’s application, as well as the applicant’s evidence in cross-examination. Considering all of that evidence I am satisfied that the applicant has given a full account of her relevant conduct up to the date of providing her explanation for the delay in making her claim.

9. [24]

   As to that explanation, I am satisfied that the period of delay of 4 months and 14 days was one that a reasonable person in the applicant’s position would have been justified in experiencing. She was 21 or 22 years of age with minimal education. She had never been in an accident before and did not know what the claims process was. Whilst she was aware of the possibility of making some form of motor vehicle claim, she did not understand that she had to give notice of such a claim within 6 months of the accident to secure her entitlement to claim any damages at any time in the future. In the 10 months or so following the accident, she continued to suffer from her physical and psychological injuries. She had impaired concentration and psychological injuries, which resulted in her becoming overwhelmed by stressful situations, losing her train of thought and becoming forgetful. As the primary judge accepted, her goal, having lost her employment and livelihood, was to get her life back together, and to do so she was focussing on her recovery.

10. [25]

    Finally, the respondent did not make any admission that he was driving the vehicle until late February 2014. In these circumstances a hypothetical reasonable person with the applicant’s education, life experience and injuries would have been justified in not taking immediate steps after June 2013 to make and pursue inquiries about her rights and any claim process. That is particularly so where such a person would not have appreciated that delay beyond a further period of three months would put at significant risk their right ever to make a claim.

11. [26]

    In the result, the interests of justice require that the applicant be granted leave to appeal and, for the foregoing reasons, that appeal should be allowed.

Conclusion

1. [27]

   For these reasons I propose the following orders:

   1. (1)

      Extend to 7 August 2018 the time under Uniform Civil Procedure Rules 2005 (NSW) r 51.9(1)(b) for the filing of a summons seeking leave to appeal.

   2. (2)

      Note the undertaking to the Court of the solicitor for the applicant that the firm Gerard Malouf & Partners will not make any claim for or recover any costs of or incidental to the making of that application for an extension of time.

   3. (3)

      Grant the applicant leave to appeal from the orders of the District Court made on 23 March 2018.

   4. (4)

      Direct that the notice of appeal be filed within 7 days.

   5. (5)

      Allow the appeal.

   6. (6)

      Set aside orders 1, 2 and 3 made by the District Court on 23 March 2018.

   7. (7)

      Order that the respondent’s notice of motion filed in the District Court on 28 June 2016 be dismissed.

   8. (8)

      Order that the respondent pay the applicant’s costs of that motion.

   9. (9)

      Order that the respondent pay the applicant’s costs of the appeal.

2. [28]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Meagher JA, with which I agree.

3. [29]

   To succeed before the primary judge, the appellant had to have provided a full account of her relevant conduct (including her actions, knowledge and belief) from the date of the accident until her explanation was ultimately furnished, and her explanation had to be such that a reasonable person in the position of the claimant “would have been justified in experiencing the same delay” (that being in respect of the period from 28 September 2013 when the six-month period for making a claim expired, until 10 February 2014 when she first made a claim). [1] It was not controversial that, by the time of the hearing at first instance, she had provided a “full” explanation; the issue was whether it was a “satisfactory” one.

4. [30]

   While all the factors to which Meagher JA refers – including in particular that the appellant was not aware of the six-month period for making a claim, and was giving priority to her recovery – are relevant and support the conclusion that a reasonable person in her position “would have been justified in experiencing the same delay”, compliance with that requirement is sufficiently demonstrated by the following circumstances, which in my judgment are decisive:

   1. (1)

      Until 26 February 2014, the appellant did not know that the respondent was the driver of the motor vehicle; such material as was available until then tended to favour the view that the appellant was the driver, and if she was, she had no claim. Although she had in fact made a claim before then, on 10 February 2014, that claim form, dated 3 February 2014 identified the respondent as a witness and the “other victim”, and stated “I am not entirely sure who was driving”.

   2. (2)

      On 26 February 2014, she received a text message from an associate who reported to her that the respondent had admitted to having been the driver. Only then was the appellant in a position to allege that the respondent was the driver. Until then, she did not know that she had a cause of action in respect of which she could make a claim.

5. [31]

   The primary judge said:

6. [32]

   However, whether absence of such knowledge did not prevent her filing her claim form when she did lodge it is not the question. The appellant did not have to explain why she made a claim when she did, but why it was justifiable for some reasonable persons in her position not to have done so sooner. [2] Had she not made her initial claim, as she did, on 10 February 2014, but claimed for the first time on 3 March 2014 (when her second claim was lodged), immediately after receiving the information that the respondent was the driver, her explanation for not claiming earlier would have been irresistible. That she acted sooner, without knowing who the driver was, does not mean that some reasonable persons in her position would not have been justified in waiting even longer, until she had a reason to believe that she was not the driver.

7. [33]

   I agree with the orders proposed by Meagher JA.

8. [34]

   SIMPSON AJA: I agree with Meagher JA.