Lengthy delay adequately explained by incorrect advice Lengthy delay adequately explained by incorrect advice

Lengthy delay adequately explained by incorrect advice

10 October 2016 | Procedure

In Issue

  • A woman was granted leave to commence proceedings 12 years after a motor vehicle accident. 

The Background

On 7 August 2002, the plaintiff was injured in a motor vehicle accident whilst a passenger in a car that was involved in a head-on collision with another car driven by the defendant. The defendant’s CTP insurer admitted liability for the accident.

The plaintiff’s claim for compensation was subject to two assessments with the Claims Assessment and Resolution Service (CARS). Both assessments were set aside by the Supreme Court. Due to the protracted CARS history, some 12 years had passed since the accident by the time the claim was exempted from CARS. Pursuant to s109 MACA, the plaintiff was required to seek leave before she was able to file a statement of claim. 

The Decision at Trial

The defendant disputed the plaintiff’s application to commence proceedings out of time on the basis that the plaintiff failed to provide a full and satisfactory explanation for the delay, pursuant to s109 MACA. The defendant relied upon a letter from Maurice Blackburn Cashman dated 28 September 2004 (solicitor’s letter), which provided: “We further remind you that you have three years from the date of the accident within which to make a claim. As the date of the accident was 7 August 2002, you have until 7 August 2005 to make a claim.”  

The trial judge noted that the letter contained very little detail about all of the relevant time limits and that it did not explain that court proceedings could not be commenced until after the CARS process had been completed. Accordingly, the trial judge granted leave to the plaintiff to file her statement of claim. 

The Issues on Appeal

On appeal the defendant argued that the solicitor’s letter displaced the plaintiff’s evidence that she was unaware of the time limit and that there was a misapplication of the relevant case law.

The Decision on Appeal

The Court of Appeal found that there was no error demonstrated in the trial judge’s findings because the solicitor’s letter, when read literally or carefully, was incorrect and potentially misleading;  the facts of the case law relied upon were so far removed from the facts of this case that “nothing of utility” turned on them; and in the circumstances, the trial judge had correctly approached the “statutory transmogrification” required by s66(2) MACA, namely, the explanation for the delay is to be assessed by reference to the views of the hypothetical reasonable person in the plaintiff’s position.

Accordingly, the Court of Appeal dismissed the defendant’s application.

Implications For You

A plaintiff will not be found to have been aware of the time limitations unless the advice that was received is accurate and properly explains all  the relevant time limitations. Furthermore, assessment of the hypothetical reasonable person required by s66(2) of the MACA requires “walking in the shoes” of the plaintiff along with his/her abilities, disabilities and “in his home surrounded by his or her friends and relations”.

Barnett v Harrison [2016] NSWCA 184