Choukor v Spiroski [2016] NSWDC 358

Choukor v Spiroski [2016] NSWDC 358

The Notice of Motion was dismissed because NRMA received the plaintiff's explanation for delay by email on 11 December 2015 and did not reject that explanation within two months, so the insurer and defendant lost the right to reject the late claim on the ground of delay under Section 73(4)(b) of the Motor Accidents Compensation Act 1999 (NSW). In any event, the plaintiff provided a full and satisfactory explanation: she was young, unworldly in legal and insurance matters, unaware before June 2015 that a claim had to be made within six months, suffered a serious right eye injury and psychological symptoms, struggled with university, work and major family and personal disruptions, and a...

Jurisdiction
Australia
Judgment Date
13 December 2016
Procedural Posture
Civil Motor Accident Negligence Proceedings / Defendant's Notice of Motion to Dismiss Proceedings Under Section 73(5) of the Motor Accidents Compensation Act 1999 (nsw) on the Ground of Delay
Outcome
Defendant's Notice of Motion dismissed.
Legal Topics
['motor Accident Claim' 'negligence' 'late Making of Claims' 'full and Satisfactory Explanation for Delay' 'presumption of Receipt of Email' 'dismissal of Proceedings on Ground of Delay']
['tort' 'motor Accidents Compensation' 'civil Procedure' 'evidence'] ['motor Accident Claim' 'negligence' 'late Making of Claims' 'full and Satisfactory Explanation for Delay' 'presumption of Receipt of Email' 'dismissal of Proceedings on Ground of Delay']

Case Brief

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Procedural Posture

Civil Motor Accident Negligence Proceedings / Defendant's Notice of Motion to Dismiss Proceedings Under Section 73(5) of the Motor Accidents Compensation Act 1999 (nsw) on the Ground of Delay

Legal Issues

  1. 1 ['Whether the insurer lost the right to reject the late claim on the ground of delay under Section 73(4)(b) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether the plaintiff provided a full account of her conduct, actions, knowledge and belief from the date of the accident until the date of providing the explanation.' "Whether a reasonable person in the plaintiff's position would have been justified in experiencing the same delay in making the claim." "Whether the defendant's Notice of Motion to dismiss the proceedings under Section 73(5) should be granted."]

Ratio Decidendi

The Notice of Motion was dismissed because NRMA received the plaintiff's explanation for delay by email on 11 December 2015 and did not reject that explanation within two months, so the insurer and defendant lost the right to reject the late claim on the ground of delay under Section 73(4)(b) of the Motor Accidents Compensation Act 1999 (NSW). In any event, the plaintiff provided a full and satisfactory explanation: she was young, unworldly in legal and insurance matters, unaware before June 2015 that a claim had to be made within six months, suffered a serious right eye injury and psychological symptoms, struggled with university, work and major family and personal disruptions, and a...

Court Disposition

Defendant's Notice of Motion dismissed.

Orders

  • ['That the Notice of Motion filed by the defendant on 20 July 2016 is dismissed.' "That the defendant is to pay the plaintiff's costs of the Notice of Motion filed 20 July 2016." "The parties have liberty to apply on two business days' notice to vary the order in (2) above."]