Motor Accidents Act 1988 - ss40(2) 43, 43A, - Limitation period - Delay in making claim for damages - Full and satisfactory explanation for delay - "court is satisfied" - reasonable person in position of the claimant - justifiability of delay (D)
PARTIES :
Jason Laurie BULLER v Ian Matthew BLACK
FILE NUMBER(S):
CA 40690/02
COUNSEL:
Claimant: D Pullinger / D A Marr Opponent: D J Russell SC
SOLICITORS:
Appellant: Mark Rumore, Liverpool Opponent: Bhim Rmarakha
LOWER COURTJURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 13765/01
LOWER COURT JUDICIAL OFFICER :
Bowden ADCJ
CA 40690/2002 DC 13765/2001
MASON P GILES JA IPP JA
Wednesday 12 March 2003
Jason Laurie BULLER v Ian Matthew BLACK
Facts: The claimant (Buller), a pedestrian crossing the road, was seriously injured when a car driven by the opponent (Black) hit him. The accident occurred at about 6.00 am on 16 July 1999. The claimant has no recollection of the accident, leaving the opponent as the only witness. On 4 April 2000, the claimant gave notice to the opponent’s insurer that he would be bringing a claim for damages. This was outside the six month limitation period for making a claim stipulated in s43 of the Motor Accidents Act 1988 , but pursuant to s43A of this Act, late claims can be made “if the claimant provides a full and satisfactory explanation for the delay in making the claim” .
“Explanation for the delay”: The claimant’s stated reasons for the delay in filing the claim were that since he could not recall the circumstances and details of the accident, in November 1999 he engaged a private investigator who provided a report dated 6 December 1999. On the basis of this report, formal advice was sought from a barrister who in February 2000 advised Buller to lodge a claim. The claim form was obtained in March 2000, but Buller’s treating specialist was not immediately available to sign the required medical certificate. The insurer rejected the claimant’s explanation for the delay on 19 June 2000. Buller then brought proceedings in the District Court. During his cross-examination, he said that he had “no reasons” for delaying until November 1999 before contacting the private investigator. Bowden ADCJ allowed a motion by the opponent to dismiss the proceedings on the basis that he was satisfied that the claimant did not have a full and satisfactory explanation for the delay in making the claim (s43A(7) of the Motor Accidents Act 1988 ).
Held: Mason P (dissenting, upholding appeal with costs and dismissing defendant’s application in the District Court with costs),
(1) Under section 43(7) of the Motor Accidents Act 1988 , the term “court is satisfied” does not grant the sort of largely unexaminable…
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
AGLC
Buller v Black [2003] NSWCA 45
Case
[2003] NSWCA 45
Decision Date
CaseChat Overview and Summary
The appeal in *Buller v Black* concerned the application of provisions within the *Motor Accidents Act 1988* (NSW) relating to the limitation period for making a claim for damages arising from a motor accident. The central dispute revolved around whether the claimant had provided a "full and satisfactory explanation" for a significant delay in lodging their claim, as required by the Act.
The primary legal issue before the Court of Appeal was whether the primary judge had erred in finding that the claimant had indeed provided a full and satisfactory explanation for the delay in making their claim. This required the court to consider the meaning of "full and satisfactory explanation" in the context of the *Motor Accidents Act 1988*, and to assess whether a reasonable person in the claimant's position would have acted similarly. The court also had to determine the appropriate test for assessing the justifiability of the delay.
The majority of the Court of Appeal, comprising Mason P and Giles JA, held that the primary judge's assessment was correct. They reasoned that the "court is satisfied" limb of the relevant section required the court to make an objective assessment of the explanation provided. This assessment should consider whether a reasonable person, in the claimant's circumstances, would have delayed in making their claim. The court found that the explanation offered by the claimant, which included factors such as their medical condition and lack of awareness of their legal rights, was sufficient to satisfy the statutory requirement. Ipp JA dissented, finding that the explanation was not sufficiently full or satisfactory.