Butler v Greenaway

[2007] NSWDC 126

CITATION:	Butler v Greenaway [2007] NSWDC 126
HEARING DATE(S):	22/08/2006, 07/09/2006, 16/11/2006, 16/02/2007
JUDGMENT DATE:	16 February 2007
JUDGMENT OF:	Kearns SC DCJ
DECISION:	Dismiss the defendant's motion and order the plaintiff to pay the defendant's costs of and incidental to the motion.
CATCHWORDS:	Motor Accidents Compensation Act - plaintiff's claim submitted out of time - whether plaintiff provided full and satisfactory explanation for the delay - plaintiff reliant on his solicitor
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Compensation to Relatives Act 1897 Motor Accidents Act 1988
CASES CITED:	Buller v Black (2003) 56 NSWLR 425 Russo v Aiello (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244 (37-38) Figliuzzi v Yonan [2005] NSWCA 290 (5) Diaz v Truong (2002) 37 MVR 158
PARTIES:	Kevin Allan Butler Paul Steven Greenaway
FILE NUMBER(S):	1265/06
COUNSEL:	Mr T Boyd and Mr D Williams appeared for the plaintiff Mr P J Nolan appeared for the defendant
SOLICITORS:	Herbert Weller for the plaintiff Sparke Helmore for the defendant

34

District Court of New South Wales

Matter No. 1265/06

Kevin Allan Butler

(the plaintiff)

v

Paul Steven Greenaway

(the defendant)

16 February 2007

JUDGMENT

KEARNS J

Background

1. The defendant’s motion seeks dismissal of the proceedings on the basis that the plaintiff’s claim was submitted outside the time required by section 72(1) of the Motor Accidents Compensation Act 1999 (MACA) and that the plaintiff has not provided a full and satisfactory explanation for the delay in making the claim.

2. The motor accident in respect of which the proceedings arise occurred on 6 March 2003 and the plaintiff’s step-brother, Jason, was killed in the accident. The proceedings that the defendant seeks to have dismissed are for damages for nervous shock. In addition, proceedings have been brought under the Compensation to Relatives Act where the plaintiff is included as a defendant.

3. The accident, the subject of the proceedings, occurred in Macquarie Street, Windsor. The accident occurred when the defendant drove his motor vehicle across the path of the deceased causing fatal injuries.

4. At the outset, I would say that I accept the evidence of the plaintiff. There seem to be some errors in some of the evidence and, where necessary, I refer to those.

Plaintiff’s evidence

5. The plaintiff is a married man with five children ranging in age from 15 to 2. He was very close to Jason.

6. He drove past the scene of the accident after it had occurred and his motor vehicle broke down nearby. He telephoned his father for help. He was then at the accident scene for a short time. He was not aware that Jason had been involved. He saw a body under a blanket and did not realise it was Jason. He then went home. He telephoned intending to speak to Jason and spoke to Hayley Ifield who was living with Jason. He says that Hayley was not aware of the accident – presumably there was some discussion between them about the accident. Later…