Margaret Baker v Ross Baker [2017] NSWDC 93

Margaret Baker v Ross Baker [2017] NSWDC 93

The plaintiff gave a full account of her conduct, actions, knowledge and belief and established that, until receiving advice in January 2016, she genuinely believed her husband's loss of consciousness was an innocent and faultless event and did not appreciate any actionable basis for a claim. In circumstances where she was relatively elderly, retired, focused on treatment, accepted her husband's assurance that coughing would warn of blackouts, and acted expeditiously once advised, a reasonable person in her position would have been justified in experiencing the same delay. The plaintiff therefore provided a full and satisfactory explanation under ss 73(7) and 109(3) of the Motor Accidents...

Jurisdiction
Australia
Judgment Date
05 May 2017
Procedural Posture
Motor Accident Personal Injury Claim / Determination of Defendant's Notice of Motion to Dismiss Proceedings for Delay and Plaintiff's Notice of Motion for Leave to Commence Proceedings Out of Time
Outcome
Defendant's Notice of Motion dismissed; plaintiff granted leave under s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings; costs of the motions to be the plaintiff's costs in the cause.
Legal Topics
['late Motor Accident Claim' 'leave to Commence Proceedings More Than 3 Years After Accident' 'full and Satisfactory Explanation for Delay' 'knowledge and Belief of Claimant']
['civil Procedure' 'motor Accidents Compensation' 'personal Injury'] ['late Motor Accident Claim' 'leave to Commence Proceedings More Than 3 Years After Accident' 'full and Satisfactory Explanation for Delay' 'knowledge and Belief of Claimant']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Motor Accident Personal Injury Claim / Determination of Defendant's Notice of Motion to Dismiss Proceedings for Delay and Plaintiff's Notice of Motion for Leave to Commence Proceedings Out of Time

Legal Issues

  1. 1 ['Whether the plaintiff provided a full and satisfactory explanation for the delay in making the claim under s 73(7) of the Motor Accidents Compensation Act 1999 (NSW).' 'Whether the plaintiff provided a full and satisfactory explanation for the delay so that leave should be granted under s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings more than 3 years after the accident.']

Ratio Decidendi

The plaintiff gave a full account of her conduct, actions, knowledge and belief and established that, until receiving advice in January 2016, she genuinely believed her husband's loss of consciousness was an innocent and faultless event and did not appreciate any actionable basis for a claim. In circumstances where she was relatively elderly, retired, focused on treatment, accepted her husband's assurance that coughing would warn of blackouts, and acted expeditiously once advised, a reasonable person in her position would have been justified in experiencing the same delay. The plaintiff therefore provided a full and satisfactory explanation under ss 73(7) and 109(3) of the Motor Accidents...

Court Disposition

Defendant's Notice of Motion dismissed; plaintiff granted leave under s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings; costs of the motions to be the plaintiff's costs in the cause.

Orders

  • ['The defendant Notice of Motion filed 13 December 2016 be dismissed.' 'Grant leave to the plaintiff pursuant to s 109 of the Motor Accidents Compensation Act 1999 (NSW) to commence proceedings by Statement of Claim filed 13 October 2016.' "The plaintiff's costs of the defendant's Notice of Motion filed 13 December...