Bird by her next friend Bird v Connell - [2016] NSWDC 276

District Court

New South Wales

Medium Neutral Citation: Bird by her next friend Bird v Connell [2016] NSWDC 276
Hearing dates: 28 October 2016
Date of orders: 01 November 2016
Decision date: 01 November 2016
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW), extend time for commencement of these proceedings to the date of the statement of claim filed in these proceedings, namely 17 May 2016.
(2) Plaintiff pay defendant’s costs.
(3) Liberty to restore in relation to costs.
(4) Exhibits retained for 28 days.

Catchwords: TORT – personal injury – application for extension of time under s 109 Motor Accidents Compensation Act 1999 (NSW) for proceedings commenced one year after limitation period expiry – child aged seven a passenger in her mother’s car in a motor vehicle accident in 2012 in which her mother is seriously injured – child’s pre-existing disabilities prevent early recognition of mental injuries she suffered – liability admitted by defendant but thereafter the solicitors consulted by the plaintiff’s mother as tutor neglect the plaintiff’s claim – plaintiff’s mother not informed of expiry of limitation period for her daughter’s claim until shortly before proceedings commenced – whether the plaintiff has provided a full and satisfactory explanation to the court for the delay – extension of time granted
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 66, 81, 82, 85, 85A and 109
Cases Cited: Blackburn v Allianz Australia Insurance Ltd (2004) 61 NSWLR 632
Brierley v Ellis (2014) 67 MVR 282
Dijakovic v Perez (2015) 71 MVR 334
Figliuzzi v Yonan [2005] NSWCA 290
Lyu v Jeon [2012] NSWCA 446
Smith v Grant (2006) 67 NSWLR 735
Walker v Howard (2009) 78 NSWLR 161
Zraika (bnf Zraika) v Walsh (2011) 60 MVR 17
Category: Procedural and other rulings
Parties: Plaintiff: Charley Bird by her next friend Sandra Lynne Bird
Defendant: Daniela Connell
Representation:
Counsel:
Plaintiff: Mr R Petrie
Defendant: Mr J Guihot
Solicitors:
Plaintiff: PK Simpsons & Co
Defendant: Sparke Helmore Lawyers

File Number(s): 2016/151812
Publication restriction: None

Judgment

The application before the court

The plaintiff, by notice of motion filed on 26 August 2016, seeks leave pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW) (“the Act”) to extend time for commencement of these proceedings to the date of the statement of claim filed in these proceedings, namely 17 May 2016 (a delay of approximately 50 weeks, as the claim had to be filed by 30 May, 2015).
The plaintiff relies upon the following material:

The affidavit of Sandra Lynne Bird, her mother, who is also her tutor, and who was injured in the same accident; and

The affidavit of Ms Tolini Kakala, who has been the solicitor with carriage of these proceedings at PK Simpson & Co Solicitors since 4 January 2016.

These witnesses were not cross-examined (Brierley v Ellis (2014) 67 MVR 282 at [22] – [28]).
The defendant opposes the application.

The circumstances leading to the claim

The plaintiff, who…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWDC 276
Decision Date: 01 November 2016

CaseChat Overview and Summary

In the case of Bird by her next friend Bird v Connell, the plaintiff, a child who had been seriously injured in a car accident in 2012, sought an extension of time to commence proceedings against the defendant, who had admitted liability for the accident. The plaintiff, who was seven years old at the time of the accident, had pre-existing disabilities which meant that the mental injuries she suffered were not recognised until later. The proceedings were commenced one year after the limitation period had expired. The plaintiff’s mother, who was her tutor, had neglected to pursue the claim, and the plaintiff was not informed of the expiry of the limitation period until shortly before proceedings were commenced. The court had to decide whether the plaintiff had provided a full and satisfactory explanation for the delay in commencing the proceedings.

The legal issue before the court was whether the plaintiff had provided a full and satisfactory explanation for the delay in commencing the proceedings. The court noted that the plaintiff’s pre-existing disabilities had prevented the early recognition of her injuries, which provided a basis for the delay. The court also took into account the neglect of the plaintiff’s claim by the solicitors consulted by the plaintiff’s mother, and the fact that the plaintiff’s mother was not informed of the expiry of the limitation period until shortly before proceedings were commenced. The court held that the plaintiff had provided a full and satisfactory explanation for the delay and granted the extension of time for the commencement of the proceedings.

The court ordered that the time for the commencement of the proceedings be extended to the date of the statement of claim filed in these proceedings, namely 17 May 2016. The plaintiff was ordered to pay the defendant’s costs. The plaintiff was also granted liberty to restore in relation to the costs, and the exhibits were to be retained for 28 days.

Orders

Orders of the court

(1) Pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW), extend time for commencement of these proceedings to the date of the statement of claim filed in these proceedings, namely 17 May 2016.

(2) Plaintiff pay defendant’s costs.

(3) Liberty to restore in relation to costs.

(4) Exhibits retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bird by her next friend Bird v Connell [2016] NSWDC 276
Hearing dates:	28 October 2016
Date of orders:	01 November 2016
Decision date:	01 November 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 109 Motor Accidents Compensation Act 1999 (NSW), extend time for commencement of these proceedings to the date of the statement of claim filed in these proceedings, namely 17 May 2016. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	TORT – personal injury – application for extension of time under s 109 Motor Accidents Compensation Act 1999 (NSW) for proceedings commenced one year after limitation period expiry – child aged seven a passenger in her mother’s car in a motor vehicle accident in 2012 in which her mother is seriously injured – child’s pre-existing disabilities prevent early recognition of mental injuries she suffered – liability admitted by defendant but thereafter the solicitors consulted by the plaintiff’s mother as tutor neglect the plaintiff’s claim – plaintiff’s mother not informed of expiry of limitation period for her daughter’s claim until shortly before proceedings commenced – whether the plaintiff has provided a full and satisfactory explanation to the court for the delay – extension of time granted
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 81, 82, 85, 85A and 109
Cases Cited:	Blackburn v Allianz Australia Insurance Ltd (2004) 61 NSWLR 632 Brierley v Ellis (2014) 67 MVR 282 Dijakovic v Perez (2015) 71 MVR 334 Figliuzzi v Yonan [2005] NSWCA 290 Lyu v Jeon [2012] NSWCA 446 Smith v Grant (2006) 67 NSWLR 735 Walker v Howard (2009) 78 NSWLR 161 Zraika (bnf Zraika) v Walsh (2011) 60 MVR 17
Category:	Procedural and other rulings
Parties:	Plaintiff: Charley Bird by her next friend Sandra Lynne Bird Defendant: Daniela Connell
Representation:	Counsel: Plaintiff: Mr R Petrie Defendant: Mr J Guihot Solicitors: Plaintiff: PK Simpsons & Co Defendant: Sparke Helmore Lawyers
File Number(s):	2016/151812
Publication restriction:	None