Fitzpatrick v Cervo [2020] NSWDC 619

Fitzpatrick v Cervo [2020] NSWDC 619

The plaintiff provided a full account of his conduct, knowledge and belief from the accident until his explanation, and the court accepted that he did not know until March 2019 that he could claim for psychiatric injuries, was suffering psychiatric symptoms including PTSD, had significant family medical stressors and work difficulties, and had taken steps after obtaining proper advice. In those circumstances, a reasonable person in his position would have been justified in experiencing the same delay, so the statutory requirement for a full and satisfactory explanation under s 73(7) was met and the motion to dismiss had to be refused.

Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Civil Motor Accident Personal Injury Claim in Negligence / Defendant's Notice of Motion Under S 73(5) of the Motor Accidents Compensation Act 1999 (nsw) Seeking Dismissal of Proceedings on the Ground of Delay in Making the Claim
Outcome
The defendant's Notice of Motion was dismissed.
Legal Topics
['negligence' 'motor Accident Claim' 'late Making of Claims' 'full and Satisfactory Explanation for Delay' 'psychiatric Injury' 'dismissal of Proceedings']
['torts' 'motor Accidents Compensation' 'civil Procedure'] ['negligence' 'motor Accident Claim' 'late Making of Claims' 'full and Satisfactory Explanation for Delay' 'psychiatric Injury' 'dismissal of Proceedings']

Case Brief

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Procedural Posture

Civil Motor Accident Personal Injury Claim in Negligence / Defendant's Notice of Motion Under S 73(5) of the Motor Accidents Compensation Act 1999 (nsw) Seeking Dismissal of Proceedings on the Ground of Delay in Making the Claim

Legal Issues

  1. 1 ['Whether the plaintiff had provided a full and satisfactory explanation for the delay in making a motor accident claim more than six months after the accident.' "Whether the proceedings had to be dismissed under s 73(7) of the Motor Accidents Compensation Act 1999 (NSW) on the defendant's application." 'Whether a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.']

Ratio Decidendi

The plaintiff provided a full account of his conduct, knowledge and belief from the accident until his explanation, and the court accepted that he did not know until March 2019 that he could claim for psychiatric injuries, was suffering psychiatric symptoms including PTSD, had significant family medical stressors and work difficulties, and had taken steps after obtaining proper advice. In those circumstances, a reasonable person in his position would have been justified in experiencing the same delay, so the statutory requirement for a full and satisfactory explanation under s 73(7) was met and the motion to dismiss had to be refused.

Court Disposition

The defendant's Notice of Motion was dismissed.

Orders

  • ['The Notice of Motion filed on 26 May 2020 is dismissed.']