Keller v Keller [2009] NSWDC 172

Procedural Posture

Civil Application Under the Motor Accidents Compensation Act Concerning Leave to Commence Motor Accident Proceedings Out of Time / Defendant's Notice of Motion to Strike Out Proceedings and Plaintiff's Notice of Motion for Leave to Commence Proceedings

Legal Issues

1. 1 ['Whether the plaintiff had provided a full and satisfactory explanation for commencing proceedings more than three years after the motor accident.' 'Whether the likely damages met the statutory threshold of not less than twenty-five percent of the maximum non-economic loss award under the Motor Accidents Compensation Act.' "Whether the delay caused significant prejudice to the defendant's ability to defend liability and damages." 'Whether s 109(2) applied where the claim was first made after the three year limitation period had expired.']

Ratio Decidendi

Leave to commence proceedings was refused because the plaintiff did not provide a full account of her knowledge and belief from the accident until the claim, and her explanation was not satisfactory at law: a reasonable person in her position, who knew she had ongoing and worsening symptoms for years after the accident, would not have been justified in delaying until July 2007 before seeking legal advice and claiming. The court also found significant prejudice to the defendant from the delay, particularly in assessing and investigating the plaintiff's complete medical history and related issues. Although the damages threshold might be met if a future economic loss claim were established,...

Court Disposition

Leave to commence proceedings refused.

Orders

• ['Leave to commence proceedings is refused.' "The plaintiff should pay the defendant's costs of the notice of motion on the basis that both motions were heard together and treated as the one motion, with only one set of costs."]