A full and satisfactory explanation for delay in bringing a claim may be received from a claimant who has no capacity to provide it

Judgment date: 20 December 2011

Sharif Zraika (by next friend Halima Zraika) v Rebecca Jane Walsh
[2011] NSWSC 1569

Supreme Court of NSW¹

In Brief

• The inability of a claimant, by reason of age or disability, to adduce evidence of his or her "knowledge and belief" in the context of explaining a late claim, will not defeat an application for leave under s 109 of the Motor Accidents Compensation Act 1999 (the Act).
• In such cases, the primary issue is the claimant's conduct but, to the extent that a tutor is acting, the tutor's knowledge and belief will be relevant.
• The test remains an objective one, namely whether a reasonable person under the legal or physical disability suffered, would have been justified in experiencing the same delay.
• Where a grant of leave might otherwise give rise to prejudice to the defendant due to an inability to cross-claim by reason of the operation of s 26 of the Limitation Act 1969, a condition of the grant of leave may include a requirement that the plaintiff commence proceedings against the other party nominated by the defendant.

Background

The claimant, Sharif Zraika (currently 9 years of age), is severely disabled and his mother, acting for the purposes of these proceedings as his next friend, applied for leave to commence proceedings for damages arising out of a motor vehicle accident that occurred on 16 November 2002.

Under s 109 of the Act, proceedings ought to have been commenced within 3 years of the accident. The application was not brought until 2010. At the expiry of the limitation period Sharif was just 2 years and 8 months of age. The Court found that the delay was almost entirely caused by the inability of his legal representatives to obtain appropriate medical evidence. His profound disabilities, arising from cerebral palsy, were not Page 2 of 3 diagnosed until some months following his birth and conflicting evidence arose as to whether the condition was attributable to the trauma of the motor accident.

In issue was whether the explanation for the delay, comprising Affidavits from the mother and her solicitors, was full and satisfactory.

Full and Satisfactory

Section 109(3) of the Act provides that the leave of the court must not be granted unless the claimant provides a full and satisfactory explanation for the delay. Section 66(2) provides that an explanation will not be "full" unless it includes an 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 threshold issue was whether the inability to establish the claimant's "knowledge and belief", given his age and incapacity, was fatal to the application. Adopting the broad principles enunciated by the Court of Appeal in Walker v Howard ² , Rothman J held that what is required is the claimant's knowledge and belief "to the extent that it is known". It is an incorrect interpretation of the Act to fictionally attribute to the claimant, the actions, knowledge and belief of his tutor. The cornerstone is the claimant's conduct but the tutor's knowledge and belief are relevant considerations.

As to whether the explanation for the delay was satisfactory in this case, the Court observed that contact with the medical practitioners throughout the period was regular, but difficult. It was difficult by reason of the inconsistent opinions which were forthcoming on the issue of causation and by reason of the mother's impecuniosity and funding problems which arose. The small pool of relevant experts was also a relevant factor. In finding that the explanation was satisfactory the Court observed, at 41:

Prejudice

The defendant argued that she was prejudiced because of the inability to obtain medical evidence at an early stage. However, this was rejected on the ground that the plaintiff's own case rested largely on an expert's interpretation of medical records, which were equally available to the defendant.

A more difficult issue related to the defendant's argument that the delay precluded her from pursuing a cross-claim against the RTA, having regard to s 26 of the Limitation Act 1969. On application of that provision, the limitation period would have expired in November 2009. After considering alternative interpretations of the section, the Court concluded that it was bound to find that any cross-claim was in fact caught by the Act. Nevertheless, and notwithstanding the prejudice which flowed to the defendant, this did not defeat the plaintiff's claim "in the circumstances of the case". The Court proposed a condition of the grant, the effect of which would preserve the defendant's rights against RTA by imposing an obligation on the plaintiff to join that entity as a co-defendant.

Implications

This case removes any doubt that an explanation for a late claim can still satisfy the requirements of the Act in circumstances where it is impossible, by reason of age or disability, to adduce evidence of the "actions, knowledge and belief of the claimant".

The case also highlights the difficulties faced by defendants in establishing prejudice arising out of the late bringing of claims. However, where the delay potentially precludes a cross-claim which has reasonable prospects of success, prejudice may well be established. That may not defeat the plaintiff's application, however, if the court can impose a condition of the grant which requires the plaintiff to join the other party as a co-defendant.

Footnotes

¹ Rothman J
² [2009] NSWSC 408

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