Background

The plaintiff was involved in a scooter accident on 25 August 2011. The plaintiff suffered a fractured right ankle and a fractured left scapular. There were differing accounts of the circumstances, however, the plaintiff was wearing a black jacket, a black helmet and was riding a black scooter on which the rear tail light was not operating. She was found to have a blood alcohol reading of 0.093 (mid‑range) and was convicted for driving under the influence as well as driving while unlicensed and unregistered in January 2012.

The plaintiff commenced District Court proceedings by way of summons on 31 August 2015 seeking leave to commence personal injury proceedings out of time pursuant to s 109, Motor Accidents Compensation Act 1999 (NSW) (MACA).

Issues

To satisfy section 109 the plaintiff needs to:

  • provide a full and satisfactory explanation for the delay; and
  • satisfy the court that total damages of all kinds likely to be awarded if the plaintiff succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 at the date of the relevant motor accident (which in this case was $108,000).

The defendant also sought a summary dismissal based on estoppel per rem judicatam arising from a consent judgment in the Local Court property damage proceedings for the same accident.

The plaintiff had a significant history of pre‑existing psychological problems and there were suicide attempts in the period leading up to the accident. Further, there were a number of reports to health professionals that the accident was actually a suicide attempt.

Full and satisfactory explanation

The plaintiff had completed an accident notification form in August 2011. Provisional liability was denied on 15 September 2011. The plaintiff lodged a claim form on 14 November 2012. Liability for the claim was denied on 24 November 2012. The plaintiff alleged that she did not recall lodging the above forms when she first consulted her current solicitors (Charleston Lawyers) on 1 July 2014.

The plaintiff was served with the statement of claim in relation to the property damage proceedings in June 2012. She filed a defence in August 2012 denying liability. Those proceedings continued until March 2013.

The plaintiff consulted Slater & Gordon in about October 2012 though she failed to attend scheduled appointments and alleged that she did not open letters from them.

Subpoenaed documents from Slater & Gordon showed that the plaintiff had advised them that she had already lodged a claim and one of the allegedly unopened letters indicated it was ‘repeating’ time limit advice. Her Honour was satisfied that this indicated the plaintiff was generally aware of time limits.

Her Honour found there was no explanation provided for the period before the plaintiff consulted Charleston Lawyers apart from alleging that her accident related psychological injury caused her to neglect pursuit of any personal injury claim. Her Honour found this assertion was not supported by any evidence. A ‘full’ explanation therefore had not been given.

Her Honour held that the pre-accident psychiatric problems did not provide a basis for a ‘satisfactory’ explanation. Her Honour found that a reasonable person in the plaintiff’s position, who was aware in a general sense that there were time limits, would not have been inactive due to pre-existing disorders particularly as she had consulted a series of professionals who were available to assist her in coping with this problem. Further the plaintiff had commenced legal studies and was well educated. Her Honour found a reasonable person would have opened letters from lawyers.

Her Honour was not satisfied that the plaintiff had provided a full and satisfactory explanation for the delay.

Damages threshold

Owing to her physical injuries the plaintiff alleged that she couldn’t run, exercise, or wear high heels. She also alleged that scarring and disfigurement of the foot/ankle caused her to be self-conscious to the extent of wearing closed shoes and refraining from being barefoot.

In evidence was extensive social media from the plaintiff’s Instagram and Facebook accounts which revealed many pictures of her bare feet and also wearing high heels.

The plaintiff was also fit, active and capable of running having performed a series of half marathons and mini marathons and posting a number of photos of tracked runs. Despite being confronted with the evidence, under cross-examination the plaintiff denied being able to run. The plaintiff’s responses included:

  • admitting entering the marathons but denying competing
  • having her identity stolen and somebody competing under her name
  • cheating to obtain finish times.

Tax returns revealed an increase in income since the accident.

The plaintiff did not tender any medical evidence supporting ongoing injuries and disabilities caused by the accident. Without medical evidence to the contrary, her Honour District Court Judge Gibson found that the plaintiff had completely recovered from physical injuries and that her pre‑existing psychiatric problems were continuing as before.

Her Honour was satisfied that the plaintiff would only be awarded a sum of about $20,000 for past economic loss and did not find any evidence supporting a cushion for future economic loss. She made no allowance for non-economic loss. Her Honour found past out‑of‑pocket expenses in the region of $10,000.

Her Honour noted that although contributory negligence must be considered in assessing the threshold[1] a judge is not required to determine a percentage. Her Honour noted that contributory negligence would be high; the plaintiff was riding a scooter late at night, affected by alcohol and the defendant said he was unable to see her. Further, if the defendant was found liable and the trial judge was satisfied that the plaintiff was indeed attempting suicide, contributory negligence would be very substantial.

Her Honour therefore found that the plaintiff did not satisfy the damages threshold of section 109.

Estoppel per rem judicatam

In settlement of the property damage proceedings the plaintiff had signed a consent judgment for the full amount claimed by the defendant plus interest and costs but on a ‘without admission of liability’ basis.

The plaintiff argued that there was no estoppel on account of the words ‘without admission of liability’ in the consent orders. The defendant submitted that the proceedings were settled for the full value without any compromise which rendered the terms ‘without admission of liability’ ineffectual for the purposes of issue estoppel.[2]

Her Honour found that the plaintiff did not expressly reserve her rights in personal injury proceedings; her evidence being that she was unaware of those rights at the time of consenting to the settlement. Her Honour found that the words ‘without admission of liability’ were “a mere legal flourish”; she accepted the defendant’s submission that where the words were inconsistent or repugnant to the rest of the settlement they had no effect[3].

As such, Her Honour found that estoppel per rem judicatam was established by the defendant.

Referral to the Department of Public Prosecutions

Following the publishing of the judgment, the defendant applied for the court to refer the matter to the Department of Public Prosecutions (DPP) on account of the plaintiff’s dishonest evidence.

Her Honour found that there was a clear attempt by the plaintiff to mislead the Court notwithstanding the many warnings given by the defendant’s counsel. As such, Her Honour found this to be one of the most blatant cases she had experienced of perjury and therefore ordered a referral to the DPP.

Indemnity costs

The defendant made a Calderbank offer dated 10 March 2016 though an application for indemnity costs was sought for the entirety of the proceedings on account of the grossly false evidence.

The defendant submitted being put to significant extra costs following the plaintiff’s blatant dishonesty. Her Honour found that even if there had been no Calderbank offer, she would award indemnity costs against the plaintiff as she was dishonest to the point of being fraudulent. Her Honour found that the plaintiff must have known the falsity of her own evidence and therefore awarded indemnity costs for the entirety of the proceedings.

Implications

This is a supportive case for insurers because:

  • A generalised allegation of psychological disorders resulting in avoidant behaviour will not always justify a ‘full and satisfactory’ explanation for the delay in bringing a claim particularly if the plaintiff is receiving treatment.
  • When property damage claims arising from the same accident are settled for the full value of the claim even on a ‘without admission of liability’ basis, this will estop the plaintiff from bringing a personal injury claim.
  • The referral to the DPP and indemnity costs order serve as a warning to potential litigants who wish to embellish their symptoms to the point of potential fraud.