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Motor accidents, full and satisfactory explanation

Vu v Nominal Defendant & NRMA Insurance Ltd [2010] NSWDC 262. Levy SC DCJ. 25.11.10.

20. The late making of motor accident injury claims is governed by s 73 which requires that the full and satisfactory explanation should be at first instance provided to the insurer : s 73(1), and an insurer may apply to the court to have the proceedings dismissed on grounds of delay: s 73(5), in which case the court must dismiss the late made claim unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim: s 73(7). ...

22. There are time limitations on the right of a claimant to commence court proceedings for motor accident injuries. After the expiry of 3 years from the date of injury, a claimant is not entitled to commence proceedings without the leave of the court: s 109(1). Such leave must not be granted in the absence of a full and satisfactory explanation for the delay in bringing the proceedings: s 109(3)(a).

23. In this case, as a result of a concession made on behalf of the respondent/second defendant, the plaintiff is not required to address or satisfy the monetary threshold provided by s 109(3)(b) of the MAC Act.

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40. The elements within the concept of “full and satisfactory explanation” as required by s 66(2) of the MAC Act are contextual and involve an explanation of the conduct, knowledge and belief of the claimant from the time of the injury until the time the explanation is proffered: Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 per Gleeson CJ at p 645. The need for a full and satisfactory explanation arises if there is a relevant procedural delay to be explained from within the factual context.

41. In my view, a reasonable person in the position of the claimant, having engaged a solicitor to act for her within the prescribed time, and assuming reasonably, as I infer from the procedural chronology, that her claim was proceeding in a regular manner on the facts known to her and to her solicitors, would have acted in the same manner as the plaintiff in this case: Russo, p 645. In this regard, I consider that the plaintiff’s “delay” in not earlier seeking to join the second defendant to these proceedings has been fully and satisfactorily explained.

42. In my view, unlike the position in many cases involving a consideration of s 109(3)(a) delay issues, the chronology of events emerging from the evidence in this unusual case adequately establishes the matters relevant to a consideration of the late claim against the second defendant without there being a need in this case for the plaintiff’s solicitor to tediously recount and annotate the same facts in a formal affidavit: Walker v Howard [2009] NSWCA 408, per Allsop P, at [104]. This is especially so where there was no substantial dispute over the chronology of relevant events.

Walker v Howard [2009] NSWCA 408. 16.12.09. Allsop P, Spigelman CJ, Campbell JA, Macfarlan JA and Young JA agreeing.

47 Section 109 [deals with the commencement of proceeding. A claimant, (he or she being the person who makes or is entitled to make a claim: see s 3), is not entitled to commence proceedings more than three years after the date of the motor accident except with the leave of the court. That leave must not be granted unless,, relevantly, the claimant provides a full and satisfactory explanation to the court for the delay: see ss 109(1)(a) and (3)(a).

A claimant who is legally incapacitated because of age or mental incapacity is nevertheless required to provide a full and satisfactory explanation for the delay: see s 109 (4). The Limitation Act 1969 (NSW) does not apply: see s 109 (5); so there is no suspension of time running because of incapacity or disability: cf the Limitation Act, s 50F.

48 As is made clear by the first sentence of s 66(2), the explanation to be given for the delay is from the date of the accident until the provision of the explanation.

49 Section 109 says nothing as to how an incapacitated claimant may bring proceedings. That is left to the law dealing with such a matter. Here, Mr Howard, being brain damaged and thus incapacitated, sought to bring the proceedings through a tutor, his half brother, Mr McInerney. Mr Howard remains the claimant: see s 109(4); but s 109(3)(a) and (4) recognise that Mr Howard must nevertheless provide a full and satisfactory explanation for the delay.

Given that it will be essential for someone in Mr Howard’s position to have a tutor to commence and conduct proceedings on his behalf, it can be readily accepted that the responsibility for assembling and presenting the explanation will fall to the tutor and those assisting him or her. He remains, however, the claimant.

50 Section 66(2) has two sentences. They should be read together as a composite whole intended to give content to the notion of a full and satisfactory explanation.

51 The first sentence is open to the textual and syntactical construction that it is restricted to a full account of the conduct of the claimant, including his or her actions, knowledge and belief. This construction would have been clearer with a comma after the word “belief”. The preposition “of” could be seen to relate both to the word “conduct” and to the phrase “actions, knowledge and belief”. The absence of the comma could be seen as in aid of flow of the sentence.

52 This construction of the first sentence might be seen to limit the scope of the required explanation to the conduct of the claimant personally, without regard to those who have acted or purported to act on his or her behalf. The authorities in this Court to which I will come are clear, however, that the explanation or full account referred to in the first sentence is not restricted to the conduct of the claimant personally.

53 The mentally incapable claimant seeking to commence proceedings by and through a tutor is therefore obliged, in the sense implicit in s 109(3)(a), to provide a full and satisfactory explanation of “the conduct”, being an account of the conduct of the claimant and others in so far as his or her and their conduct is relevant to the explanation for the delay.

The explanation must be full and satisfactory and address matters relevant to the explanation for the delay.

The terms of s 66(2) do not direct the enquiry to the nature or extent of the legal authority of others to act on behalf of the claimant nor do they restrict the enquiry to the acts or omissions of persons with legal authority to act on behalf of the claimant.

It is the explanation for the delay that is called for, not an explanation of what those with actual authority from the claimant did.

54 The claimant, to provide the requisite explanation, must address acts and omissions relevant to the delay “from the date of the accident until the date of providing the explanation.”

55 These attributes of the “full and satisfactory explanation” in the first sentence of s 66(2) do not mean that the word “claimant” is any broader than its defined meaning. The claimant is responsible for providing the explanation: s 109(3)(a). If, as here, he or she is mentally incapacitated, that practical responsibility will fall to his or her tutor on his or her behalf. That the explanation should cover the conduct of agents (such as a solicitor) or those purporting to act on the claimant’s behalf, does not broaden the meaning of “claimant” in s 66(2) to “the person who makes or is entitled to make the claim and any person acting or purporting to act on his or her behalf.” No warrant appears in the text or structure of the MAC Act or these provisions for this interpretation.

56 Thus, the phrase “including the actions, knowledge and belief of the claimant” should not be read as “including the actions, knowledge and belief of the claimant and any person acting or purporting to act on his or her behalf.”

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MAC Act s 66 Definitions

(2)  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.

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