Full and satisfactory explanation for delay: the objective test requiring subjective context

28 March 2023

A plaintiff was allowed to bring a claim for damages after the expiry of the limitation period by providing a full and satisfactory explanation for the delay.

In issue

  • Whether the plaintiff had provided a full and satisfactory explanation for the delay in adding a claim in the alternative for damages against QBE pursuant to the Motor Accident Compensation Act 1999 (MACA) after expiry of the limitation period.

The background

On 1 August 2016, the plaintiff was driving a truck carrying flour from Manildra Flour Mills to Sydney, when the truck rolled causing the plaintiff to sustain injuries including a traumatic brain injury. Due to the impact of the plaintiff’s brain injury, his wife was significantly involved in the matter. She was the initial contact with the plaintiff’s lawyers and first attended their office in late-August 2016 to discuss the possibility of a claim. Between August 2016 and July 2017 several follow up emails were sent to the plaintiff’s wife. It was not until August 2018 that the plaintiff and his wife attended upon, and subsequently engaged his solicitors.

Being a single motor vehicle accident there was nothing to suggest, at that time, that the accident was the fault of anyone else, pursuant to the MACA, other than the plaintiff. The plaintiff subsequently received lump sum compensation, and proceedings were commenced against his employer and their contractor for work injury damages in April 2020.

On 30 November 2021, the second defendant raised in correspondence to the plaintiff’s solicitors that the MACA might apply. This was then communicated to the plaintiff on 20 January 2022 who instructed his solicitors to bring a claim in the alternative against QBE as the third defendant for damages pursuant to the MACA.

All procedural requirements of the MACA had been complied with at the date of the hearing.

The court observed that there was no issue about prejudice, actual or presumptive, caused by the delay that would mean that the third defendant could not have a fair hearing.

It was conceded during the hearing that the plaintiff’s explanation was full, and therefore the only issue for the court to determine was whether the plaintiff’s explanation was satisfactory.

The decision at trial

The court found that 'neither the plaintiff nor his wife were ever provided with full advice about making a claim pursuant to the MACA. Mrs Chapman was only aware – in August 2018 – about the time limit for forwarding a claim form. Mrs Chapman was then told that a “green slip” claim was not viable. Indeed, until January 2022, when the Chapmans were informed about the second defendant’s belated view that the MACA might apply, neither the claimant nor his wife had any advice, idea or information about the possible applicability of the MACA to the proceedings.'

The court considered it was relevant that many experienced solicitors and barristers were involved in the matter over several years, and up to November 2021 no legal professional had ever considered that the MACA might apply. 'This fact, in the circumstances of this case, in my view is crucial in the assessment as to whether a reasonable person in the plaintiff’s position would have been justified in experiencing the delay. The plaintiff is essentially compelled to now join the third defendant, which he did expeditiously and without prejudice being occasioned to it.'

Neither the plaintiff nor his wife was given full and comprehensive legal advice about a motor accident claim or the relevant limitation periods, so it could not be said that a deliberate decision was made to allow the statutory limitation period to expire.

Implications for you

The test of a 'full and satisfactory explanation', whilst being objective, requires subjective context. When considering a matter that deals with this issue, it is imperative to consider what was in the knowledge of a plaintiff and whether a deliberate decision was made to allow the statutory limitation period to expire.

Chapman v Gibbo’s Transport Pty Ltd & Ors (No 2) [2023] NSWSC 186

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