Hooker v Gilling [2007] NSWCA 99

Hooker v Gilling [2007] NSWCA 99

The pre-2006 definition of 'injury' in the Motor Accidents Compensation Act 1999 does not encompass a claim for a progressive injury, that is, an injury arising gradually from a series of incidents, as clarified by legislative amendment and supporting case law. However, the claimant's Amended Statement of Claim lacked requisite clarity to properly plead such a progressive injury claim but ought to be allowed to amend to do so. It was inappropriate to strike out such claims as statute-barred on a summary basis where the accrual of the cause of action and limitation issues depended on matters yet to be determined at trial.

Parties
Claimant: David Price Hooker; Opponent: Glenys Joy Gilling
Jurisdiction
Australia
Judgment Date
01 May 2007
Procedural Posture
Civil / Application for Leave to Appeal and Appeal From Interlocutory Orders Striking Out Pleadings in Lower Court
Outcome
Leave to appeal granted; appeal allowed; orders striking out parts of the Statement of Claim set aside; leave to amend Statement of Claim granted; each party to bear own costs; certificate under the Suitors' Fund Act 1951 if otherwise qualified.
Legal Topics
Pleadings, Limitation of Actions, Motor Accidents Compensation, Interpretation of Amending Legislation
Civil Procedure Statutory Interpretation Motor Vehicle Law Pleadings Limitation of Actions Motor Accidents Compensation Interpretation of Amending Legislation

Case Brief

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Parties

David Price Hooker

Claimant

Glenys Joy Gilling

Opponent

Procedural Posture

Civil / Application for Leave to Appeal and Appeal From Interlocutory Orders Striking Out Pleadings in Lower Court

Legal Issues

  1. 1 Whether the Motor Accidents Compensation Act 1999 applies to a 'progressive injury' claim constituted by a series of assaults using a motor vehicle; Whether the pleadings as drafted sufficiently disclosed such a claim or separate claims; Whether the claims were statute barred under the Limitation Act 1969; Whether leave should be granted to amend the Statement of Claim to clarify a progressive injury claim.

Ratio Decidendi

The pre-2006 definition of 'injury' in the Motor Accidents Compensation Act 1999 does not encompass a claim for a progressive injury, that is, an injury arising gradually from a series of incidents, as clarified by legislative amendment and supporting case law. However, the claimant's Amended Statement of Claim lacked requisite clarity to properly plead such a progressive injury claim but ought to be allowed to amend to do so. It was inappropriate to strike out such claims as statute-barred on a summary basis where the accrual of the cause of action and limitation issues depended on matters yet to be determined at trial.

Court Disposition

Leave to appeal granted; appeal allowed; orders striking out parts of the Statement of Claim set aside; leave to amend Statement of Claim granted; each party to bear own costs; certificate under the Suitors' Fund Act 1951 if otherwise qualified.

Orders

  • Grant leave to appeal.
  • Notice of Appeal to be filed within fourteen days.