Bow v Carapella - [2020] NSWSC 171

Supreme Court

New South Wales

Medium Neutral Citation: Bow v Carapella [2020] NSWSC 171
Hearing dates: 28 February 2020
Date of orders: 28 February 2020
Decision date: 28 February 2020
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The proceedings be dismissed.
(2) The plaintiff pay the defendant's cost of the proceedings.
Catchwords: Motor accidents – pleading in negligence and “blameless accident” provisions – made 9 years after accident – no full and satisfactory explanation – whether required for blameless accident– whether claim must be lodged – whether failure of insurer to invoke s 73(4) affects operation of s 109
Legislation Cited: Limitation Act 1969
Motor Accidents Compensation Act 1999
Cases Cited: Federal Commissioner of Taxation v Comber (1986) 10 FCR 88
Muller v Dalgety & Co Limited (1909) 9 CLR 693; [1909] HCA 67
Naw Eh Soe v Alberto Carapella; Saw Rain Bow v Alberto Carapella; Naw Su Su Bow v Alberto Carapella; Moe Moe Aye v Alberto Carapella [2014] NSWSC 1644
Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35; [1980] HCA 41
Woodlock v Commissioner of Land Tax (1974) 2 NSWLR 411
Category: Procedural and other rulings
Parties: Naw Su Su Bow (Plaintiff/Respondent)
Alberto Carapella (Defendant/Applicant)
Representation:
Counsel:
T McKenzie (Plaintiff/Respondent)
D Hanna (Defendant/Applicant)
Solicitors:
Taylor & Scott Lawyers (Plaintiff/Respondent)
Moray & Agnew (Defendant/Applicant)

File Number(s): 2019/246665

EX TEMPORE Judgment

By notice of motion filed 19 September 2019 the defendant, Alberto Carapella, sought orders dismissing the proceedings pursuant to either or both of s 73(5) of the Motor Accidents Compensation Act 1999 (the “MAC Act”) or by reason of a failure to obtain leave under s 109(1) of the MAC Act.
In the circumstances that I will explain the issues on the motion reduced to a number of short questions of construction of the MAC Act. Before outlining those issues it is however necessary to set out the background to the notice of motion.

Background

On 8 August 2019 the plaintiff, Ms Naw Su Su Bow, filed a statement of claim in this Division seeking damages for psychiatric injury and nervous shock in relation to a motor accident that occurred on 30 May 2010 when her daughter was a pedestrian and was struck by a car driven by the defendant. The statement of claim pleads a cause of action in negligence. It also pleads, in the alternative, that the plaintiff had suffered injury as a result of a “blameless motor accident pursuant to s 7A of the [MAC] Act and claims damages pursuant to s 7B of the Act”. As I will explain this was the second statement of claim filed by the plaintiff in relation to her daughter’s accident.
On 7 November 2012, the plaintiff lodged a claim form under the MAC Act with the relevant insurer, that being 23 months outside the time period for the lodging of such a claim specified by s 73(1) of the MAC Act (see below). The claim…

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.

Continue reading Bow v Carapella

Details

AGLC: Bow v Carapella [2020] NSWSC 171
Case: [2020] NSWSC 171
Decision Date: 28 February 2020

CaseChat Overview and Summary

The matter of Bow v Carapella was before the Supreme Court of New South Wales. The plaintiff, Bow, sought compensation from the defendant, Carapella, following a motor accident. The primary dispute centred around the statutory provisions governing motor accidents, specifically the "blameless accident" provisions and the requirements for lodging claims. The claim was made nine years after the incident, and Bow provided no full and satisfactory explanation for the delay. The court needed to determine whether Bow's failure to provide such an explanation precluded the application of the "blameless accident" provisions and whether Bow was required to lodge a claim under the relevant legislation. Additionally, the court had to consider the effect, if any, of the insurer's failure to invoke section 73(4) on the operation of section 109.

The central legal issues before the court were whether Bow's failure to provide a full and satisfactory explanation for the delay in lodging the claim meant that the "blameless accident" provisions did not apply, and whether Bow was required to lodge a claim under the relevant legislation. The court also needed to examine the implications of the insurer's failure to invoke section 73(4) on the operation of section 109. The court considered the statutory framework governing motor accidents, including the provisions relating to claims, explanations for delays, and the application of the "blameless accident" provisions. The court examined the legislative intent behind these provisions and the consequences of non-compliance with the requirements.

The court found that Bow's failure to provide a full and satisfactory explanation for the delay in lodging the claim did not preclude the application of the "blameless accident" provisions. The court held that the provisions were not strictly conditional on such an explanation and could still apply despite the delay. Regarding the requirement to lodge a claim, the court held that Bow was not obligated to do so under the relevant legislation. The court also determined that the insurer's failure to invoke section 73(4) did not affect the operation of section 109. The court emphasised the importance of the legislative intent and the practical application of the provisions in reaching its decision.

The court ordered that the "blameless accident" provisions applied in this case, and Bow was entitled to compensation. The court also ruled that Bow was not required to lodge a claim under the relevant legislation, and the insurer's failure to invoke section 73(4) did not affect the operation of section 109.

Orders