Smallwood v Broome [2019] NSWDC 393

Smallwood v Broome [2019] NSWDC 393

The plaintiff satisfied s 109(3) of the Motor Accidents Compensation Act 1999 (NSW) because the combined evidence concerning her minority at the time of the accident, physical and psychological sequelae, family circumstances, lack of knowledge of the statutory scheme, move to the United Kingdom and prompt action after obtaining legal advice provided a full and satisfactory explanation for the delay, and the evidence taken at its highest showed that her likely damages would exceed the agreed $112,500 threshold. There was no sound basis at this interlocutory stage to discount quantum for contributory negligence.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Civil Negligence Claim for Damages Arising From a Motor Vehicle Accident / Contested Notice of Motion for Leave Under S 109(1) of the Motor Accidents Compensation Act 1999 (nsw) to Institute and Maintain Proceedings Commenced Out of Time
Outcome
Plaintiff granted leave to institute and maintain the already commenced proceedings; defendant's applications to cross-examine deponents and for a split trial were refused.
Legal Topics
['leave to Commence and Maintain Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'motor Accident Damages Threshold' 'cross Examination of Deponents in Interlocutory Proceedings' 'split Trial Application' 'contributory Negligence in Threshold Assessment']
['limitation of Actions' 'motor Accidents Compensation' 'negligence' 'civil Procedure'] ['leave to Commence and Maintain Proceedings Out of Time' 'full and Satisfactory Explanation for Delay' 'motor Accident Damages Threshold' 'cross Examination of Deponents in Interlocutory Proceedings' 'split Trial Application' 'contributory Negligence in Threshold Assessment']

Case Brief

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Procedural Posture

Civil Negligence Claim for Damages Arising From a Motor Vehicle Accident / Contested Notice of Motion for Leave Under S 109(1) of the Motor Accidents Compensation Act 1999 (nsw) to Institute and Maintain Proceedings Commenced Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff provided a full explanation for the delay in commencing proceedings within the meaning of s 109 and s 66(2) of the Motor Accidents Compensation Act 1999 (NSW)' "Whether the plaintiff's explanation for delay was satisfactory because a reasonable person in her position would have experienced the same delay" "Whether the plaintiff's likely damages met the threshold required by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW)" 'Whether the defendant should be permitted to cross-examine the plaintiff and her mother on their affidavits in the interlocutory motion' "Whether the defendant's late informal application for a split trial should be entertained"]

Ratio Decidendi

The plaintiff satisfied s 109(3) of the Motor Accidents Compensation Act 1999 (NSW) because the combined evidence concerning her minority at the time of the accident, physical and psychological sequelae, family circumstances, lack of knowledge of the statutory scheme, move to the United Kingdom and prompt action after obtaining legal advice provided a full and satisfactory explanation for the delay, and the evidence taken at its highest showed that her likely damages would exceed the agreed $112,500 threshold. There was no sound basis at this interlocutory stage to discount quantum for contributory negligence.

Court Disposition

Plaintiff granted leave to institute and maintain the already commenced proceedings; defendant's applications to cross-examine deponents and for a split trial were refused.

Orders

  • ['Pursuant to s 109(1) of the MAC Act, the plaintiff is granted leave to institute and maintain these already commenced proceedings claiming damages as compensation for the injuries she sustained in a motor vehicle accident on 21 October 2011.' "The defendant is to pay the plaintiff's costs of the plaintiff's notice...