Kechuol v Bravo [2014] NSWDC 332

Kechuol v Bravo [2014] NSWDC 332

The plaintiff gave a full account of the relevant delay and, given her limited English, limited education, unfamiliarity with the legal system, timely consultation with solicitors, reliance on those solicitors and steps taken when dissatisfied, a reasonable person in her position would have been justified in experiencing the same delays. The alleged inconsistencies did not warrant adverse findings because they were not directly relevant to the statutory explanation and the plaintiff was not cross-examined. The medical evidence and identified heads of damage also established a real chance that total damages would exceed the agreed s 109(3)(b) threshold of $119,250, so leave to commence...

Jurisdiction
Australia
Judgment Date
12 September 2014
Procedural Posture
Civil Motor Accidents Compensation Negligence Proceedings / Plaintiff's Application for Leave to Commence Proceedings Under S 109 of the Motor Accidents Compensation Act 1999 and Defendant's Notice of Motion to Dismiss for Non Compliance With Ss 73 and 109
Outcome
Leave granted to commence proceedings; defendant's notice of motion dismissed; costs of the motions to be costs in the proceedings.
Legal Topics
['late Claim Notice' 'late Commencement of Proceedings' 'full and Satisfactory Explanation' 'reliance on Solicitors' 'damages Threshold Under S 109(3)(b)']
['motor Accidents Compensation' 'negligence' 'civil Procedure'] ['late Claim Notice' 'late Commencement of Proceedings' 'full and Satisfactory Explanation' 'reliance on Solicitors' 'damages Threshold Under S 109(3)(b)']

Case Brief

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Procedural Posture

Civil Motor Accidents Compensation Negligence Proceedings / Plaintiff's Application for Leave to Commence Proceedings Under S 109 of the Motor Accidents Compensation Act 1999 and Defendant's Notice of Motion to Dismiss for Non Compliance With Ss 73 and 109

Legal Issues

  1. 1 ['Whether the plaintiff had a full and satisfactory explanation for failing to give notice of claim within six months under s 73 of the Motor Accidents Compensation Act 1999.' 'Whether the plaintiff had a full and satisfactory explanation for commencing proceedings after the three-year period under s 109 of the Motor Accidents Compensation Act 1999.' 'Whether the total damages likely to be awarded to the plaintiff, if the claim succeeded, were not less than 25% of the maximum amount for non-economic loss as required by s 109(3)(b).']

Ratio Decidendi

The plaintiff gave a full account of the relevant delay and, given her limited English, limited education, unfamiliarity with the legal system, timely consultation with solicitors, reliance on those solicitors and steps taken when dissatisfied, a reasonable person in her position would have been justified in experiencing the same delays. The alleged inconsistencies did not warrant adverse findings because they were not directly relevant to the statutory explanation and the plaintiff was not cross-examined. The medical evidence and identified heads of damage also established a real chance that total damages would exceed the agreed s 109(3)(b) threshold of $119,250, so leave to commence...

Court Disposition

Leave granted to commence proceedings; defendant's notice of motion dismissed; costs of the motions to be costs in the proceedings.

Orders

  • ['Grant leave to commence proceedings under s 109 of the Motor Accidents Compensation Act 1999.' "Dismiss the defendant's notice of motion." 'Costs of the motions be costs in the proceedings.']