Late claim – full and satisfactory explanation not provided
May 29, 2012
Agyeman-Badu v Nominal Defendant (2012) NSWDC 35
In this case Judge Gibson of the District Court of NSW refused the plaintiff’s motion for leave under s109 to commence proceedings. Her Honour further granted the defendant’s motion in dismissing the proceedings for breaches of s72 and 73 as a full and satisfactory explanation had not been provided.
On 26 November 2007 the plaintiff alleged she was a pedestrian walking across Liverpool Street, Sydney at a pedestrian crossing, controlled by traffic lights, when she was struck by an unidentified vehicle, the identity of which could not be established after due search and inquiry. The plaintiff was unaware of her rights to lodge a claim for personal injury sustained in the motor vehicle accident until a friend suggested to her that she see a solicitor. On 3 December 2009, the plaintiff consulted PK Simpson Lawyers in respect of her rights. For the first time she was advised that she was entitled to lodge a claim and that her claim would now be late as there were time limits to comply with in respect of lodging a personal injury claim form. The plaintiff signed a personal injury claim form at the initial meeting with her solicitors and left it in the hands of her solicitors to lodge the claim. The plaintiff’s solicitors served the claim form upon the Nominal Defendant on 10 March 2010 (some three months later).
Whilst her Honour accepted the plaintiff’s explanation for the delay following the motor vehicle accident up until the time she consulted her solicitors, she was not satisfied that a full and satisfactory explanation had been provided for the three month delay in lodging the claim form upon the Nominal Defendant. There was affidavit evidence before her Honour from the plaintiff’s solicitors indicating that several attempts, by way of telephone and correspondence, had been made during that three month period to contact the plaintiff to clarify some information about the location of the accident prior to lodging the claim form.
The plaintiff was not contactable during this time and alleged she did not respond to her solicitors’ request as she was very depressed following the accident. Her Honour found that a reasonable person once advised of the time restraints would have acted promptly and responded to her solicitors’ request for further information to enable them to lodge the claim form upon the insurer.
In determining the leave application under s109 her Honour also considered the prejudice in allowing the plaintiff leave to commence proceedings. The evidence of the plaintiff was that there were many witnesses that came to her aid, but due to a lapse of time, such witnesses could not be located to assist with the description of the unidentified vehicle and / or the circumstances of the accident. Her Honour considered the prejudice in the circumstances of this accident, where an unidentified vehicle was involved and the opportunity to find witnesses had long since been lost was of great concern. Her Honour further noted that the contemporaneous clinical notes suggested different versions had been provided by the plaintiff of what happened and her own recollection of the accident was not clear. The clinical notes suggested a history of the claimant tripping and falling whilst attempting to cross the road, with no mention of an unidentified vehicle. Her Honour found the prejudice to the defendant outweighed the prejudice to the plaintiff by reason of her loss of cause of action as it was too late for the defendant to establish not only absence of liability, but also any contributory negligence.
A side issue that was also determined by her Honour was in relation to whether or not the statement of claim was filed within two months of the issuing of the CARS exemption certificate or whether it was two months from the date of sending out the exemption certificate by the Motor Accidents Authority.
Her Honour found that s109 refers to the issuing of the exemption certificate, which means the date on the certificate. Time commences to run again for s109 purposes from the date on the exemption certificate.
Whilst initially her Honour accepted the plaintiff’s explanation for the two year delay in consulting solicitors following this motor vehicle accident, she was not prepared to accept that the further three month delay in lodging the claim form with the Nominal Defendant had been fully and satisfactorily explained.
This decision confirms that plaintiffs advised of time limits have to take reasonable steps to prosecute their claims and cannot merely leave matters in the hands of their solicitors. It also clarifies the relevant date for ‘restarting the clock’ for s109 purposes.
Authored by Anne-Maree Williams, Special Counsel, Sydney.
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