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District Court 27 May 2016

Amor-Smith v Ching

[2016] NSWDC 89

Traffic & driving
TORT PERSONAL INJURY ESTOPPEL PER REM JUDICATAM SUMMONS DISMISSED ON ALL GROUNDS

Citation: Amor-Smith v Ching [2016] NSWDC 89
Court: District Court of New South Wales
Date: 27 May 2016
Judge: Gibson DCJ

Background

The plaintiff was riding a scooter when it collided with the defendant's vehicle on 25 August 2011. She suffered a fractured right ankle and left scapula, and underwent surgery shortly after the accident. She did not commence personal injury proceedings within the three-year limitation period prescribed by the Motor Accidents Compensation Act 1999 (NSW), which expired on 25 August 2014.

By summons filed on 31 August 2015, the plaintiff sought leave from the District Court to commence proceedings out of time under s 109 of the Act. The defendant opposed the application on multiple grounds, including that the plaintiff had not provided a satisfactory explanation for the delay, that her likely damages did not meet the statutory threshold, and that a consent judgment in earlier Local Court property damage proceedings operated as an issue estoppel against her.

The case was further complicated by significant inconsistencies across the plaintiff's accounts of how the accident occurred. Psychiatric records from nine treating clinicians consistently recorded the plaintiff's own admissions that she had been drinking and was attempting to commit suicide at the time. Her blood alcohol reading was 0.093 (mid-range). These accounts conflicted with the version she gave in these proceedings, in which she denied any suicidal intent.

  • Whether the plaintiff provided a "full and satisfactory explanation" for the delay in commencing proceedings, as required by s 109(3)(a) of the Act.
  • Whether the total damages likely to be awarded to the plaintiff met the statutory minimum of 25% of the maximum amount for non-economic loss (the "threshold" under s 109(3)(b)), taking into account any reduction for contributory negligence.
  • Whether the consent judgment obtained by the defendant against the plaintiff in the Local Court for motor vehicle property damage (settled for the full amount claimed) gave rise to an issue estoppel, despite being expressed as "without admission of liability."
  • Whether the defendant's mid-hearing application to refer the matter to the Director of Public Prosecutions should be entertained, and on what basis.

Decision

The court dismissed the summons on all grounds. The two statutory preconditions in s 109(3) were not satisfied, and the issue estoppel argument also succeeded.

Full and satisfactory explanation for delay: The court found that the plaintiff had not provided a full and satisfactory explanation for the delay in commencing proceedings. The judgment text does not reproduce the detailed reasoning on this point, but the finding formed one of the independent bases for dismissing the summons.

Damages threshold: The plaintiff was required to demonstrate that total damages likely to be awarded were not less than 25% of the maximum non-economic loss amount, which was $432,000 under the Motor Accidents Compensation (Determination of Loss) Amendment Order 2010. This meant the plaintiff needed to establish likely damages of at least $108,000. The court spent most of the hearing on this question. Critically, the multiple inconsistent accounts of the accident, including the plaintiff's own admissions of contributory negligence through intoxication, were relevant to this calculation because any reduction for contributory negligence is factored into the threshold assessment, following Reeves v Reeves (2002) 36 MVR 488. The court found the threshold was not met.

Issue estoppel: The defendant had previously obtained a consent judgment against the plaintiff in the Local Court for the full amount of the property damage claim, with no discount. The plaintiff argued that the words "without admission of liability" appended to the consent judgment prevented any issue estoppel arising. The court rejected that argument. Drawing on Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR (NSW) 69 and Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665, the court held that settling for the full amount without any compromise rendered the "without admission of liability" wording effectively meaningless for issue estoppel purposes.

DPP referral and s 128 certificate: The defendant applied during the hearing for the matter to be referred to the Director of Public Prosecutions. The court deferred ruling on that application until judgment, noting the difficulties for a trial judge in making findings of fact simultaneously for both litigation and potential prosecution purposes. The court's reasons acknowledge that no single legislative pathway exists for such a referral in New South Wales. The court also declined to grant the plaintiff a certificate under s 128 of the Evidence Act 1995 (NSW) protecting her from self-incrimination in respect of evidence she gave and later conceded was untrue, because that evidence went to the foundation of her claim rather than being a collateral or credit matter.

Orders Made

  • Summons filed 31 August 2015 dismissed.
  • Plaintiff to pay the defendant's costs.
  • Liberty to restore in relation to costs and any other post-judgment application.

Key Takeaways

  • Under s 109(3) of the Motor Accidents Compensation Act 1999, both preconditions (a full and satisfactory explanation for delay, and likely damages at or above 25% of the non-economic loss maximum) must be independently satisfied; failure on either is fatal to the application.
  • Where a consent judgment settles a claim for the full amount claimed without any compromise, the addition of the words "without admission of liability" does not necessarily prevent an issue estoppel from arising; the absence of any actual concession on the quantum renders the qualifying words otiose.
  • In calculating whether the damages threshold in s 109(3)(b) is met, potential contributory negligence reductions are taken into account, meaning that a plaintiff's own conduct at the time of the accident can affect the threshold analysis.
  • A court hearing an out-of-time leave application may be required to assess significantly contradictory evidence about how an accident occurred, including accounts from the plaintiff's own treating clinicians, for the purpose of evaluating the likely damages outcome.
  • Refusing to grant a s 128 Evidence Act certificate, the District Court applied the principle in Clayton Utz v Dale [2015] VSCA 186: the privilege against self-incrimination is not available to a plaintiff in respect of evidence that forms the foundation of the plaintiff's own claim, as distinct from purely collateral or credit issues.

Legislation and Cases Referenced

Legislation:
- Motor Accidents Compensation Act 1999 (NSW), s 109
- Motor Accidents Compensation (Determination of Loss) Amendment Order 2010
- Evidence Act 1995 (NSW), s 128
- Crimes Act 1900 (NSW), s 338
- Criminal Justice and Courts Act 2015 (UK), s 57
- Law Abuse Reduction Act (LARA) 2015 (US: HR 758, S 401)

Cases:
- Reeves v Reeves (2002) 36 MVR 488
- Charafeddine v Morgan (2014) 66 MVR 232
- Isaacs v Ocean Accident and Guarantee Corp Ltd (1958) SR (NSW) 69
- Ekes v Commonwealth Bank of Australia (2014) 313 ALR 665
- Clayton Utz v Dale [2015] VSCA 186
- Mohareb v Palmer [2015] NSWCA 369
- Application of Alejandro Arturo Toro-Martinez [2008] NSWSC 34
- Glover v Australian Ultra Concrete Floors Pty Ltd [2006] NSWSC 503
- Dai v Zhu [2013] NSWCA 412
- Dijakovic v Perez (2015) 71 MVR 334
- Lyu v Jeon [2012] NSWCA 446
- Eades v Gunestepe [2012] NSWCA 204
- Conference and Exhibition Organisers Pty Ltd v Johnson [2016] NSWCA 118