Astill v Newman

[1999] NSWCA 43

CITATION:	Astill v Newman [1999] NSWCA 43
FILE NUMBER(S):	CA 40621/97
HEARING DATE(S):	04/03/99
JUDGMENT DATE:	4 March 1999
PARTIES :	Glen Astill v Paul Edward Newman
JUDGMENT OF:	Sheller JA at 21; Beazley JA at 22; Fitzgerald JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	71/97
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace DCJ

COUNSEL:	J D Hislop QC/D J Russell (Appellant) B K Ralston (Respondent)
SOLICITORS:	B Ramrakha (Appellant) Mathew Savage & Associates (Respondent)
CATCHWORDS:	Limitation period; s52(4) Motor Accidents Act 1988; trial judge erred in carrying out a "balancing exercise" to determine whether leave should be granted; miscarriage of discretion; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA40621/97
DC 71/97

SHELLER JA
BEAZLEY JA
FITZGERALD JA

Thursday 4 March 1999

Glen ASTILL v Paul Edward NEWMAN

JUDGMENT

1 FITZGERALD JA: In this Judgment I propose to refer to the appellant as the defendant, and to the respondent as the plaintiff. The defendant has appealed by leave of this Court from a decision of a District Court judge given on 10 September 1997, granting the plaintiff leave to bring proceedings outside the three year limitation period in subs 52(4) of the Motor Accidents Act 1988.
2 The plaintiff claims that he was injured in a motor vehicle accident on 2 October 1989. He was a passenger in a vehicle driven by the defendant, which left the roadway and struck a pole. Another passenger in the vehicle was killed as a result of the accident. It is not clear whether or not the plaintiff was wearing a seat belt at the time. There is also a possibility that alcohol was a factor in the accident, and it has been suggested by the defendant that both he and the plaintiff were affected by alcohol. However, that is not a matter for determination now.
3 The plaintiff sought legal advice in 1990, 1993 and 1996 in relation to the accident, but he did not serve the defendant’s insurer with a claim form until 24 March 1997, some seven and a half years after the accident. This was the first notification that the defendant’s insurer received of the plaintiff’s claim, although there had been another claim earlier in relation to another person injured or killed in the accident, which had been compromised.
4 The plaintiff alleges that he sustained orthopaedic injuries and post-traumatic stress disorder as a result of the accident. A principal part of his claim relates to the post-traumatic stress disorder, the major symptoms of which, according to the medical evidence, are deep depression and despair.
5 The primary Judge noted that subs 52(4) of the Act requires her “to be satisfied that before I grant leave that there has been, in general terms, an explanation of the delay, and that it is an appropriate case in which I ought to exercise my discretion”. Her Honour described the exercise…