Butler v Korkidas - [2008] NSWSC 1259

CITATION: BUTLER v KORKIDAS [2008] NSWSC 1259

HEARING DATE(S): 19 November 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

EX TEMPORE JUDGMENT DATE: 19 November 2008

DECISION: Leave granted to commence proceedings. The plaintiff to pay the defendant's costs of this application.
Defendant's notice of motion dismissed with no order as to costs.

CATCHWORDS: Motor accidents claim - time expired - whether full and satisfactory explanation - claimant trusted solicitors and acted reasonably - whether damages likely to exceed statutory limit - necessary to make a practical and realistic assessment - leave granted to commence proceedings

LEGISLATION CITED: Motor Accidents Compensation Act 1999 ss 108, 109

CATEGORY: Procedural and other rulings

PARTIES: Nicholas James BUTLER (Plaintiff)
Konstantinos KORKIDAS (Defendant)

FILE NUMBER(S): SC 20333/07

COUNSEL: T D F Hughes (Plaintiff)
G J Smith (Defendant)

SOLICITORS: G H Healey & Co (Plaintiff)
T L Lawyers (Defendant)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

WEDNESDAY 19 NOVEMBER 2008

20333/07 - Nicholas James BUTLER v Konstantinos KORKIDAS

JUDGMENT

1 HIS HONOUR: This is an application for leave under s 109 of the Motor Accidents Compensation Act 1999. It has come before me as application’s judge on assurances made by the parties, quite mistakenly, that it was a short matter. It has for all practical purposes taken a day and it will take somewhat longer by the time I deliver this judgement. I do not propose to enquire how it was that the error came about, but I take this opportunity to remind legal representatives to be scrupulous about predictions of time so that the Court may properly administer its workload.

2 I should say that I have been very much assisted by the candid approach of both counsel to the issues in this case, an approach which has enabled me to come to a clear view about how the application should be determined. To avoid further delay, even though it is passed the usual sitting time, I intend to give an ex tempore judgment. In the nature of things this judgment may not do justice to the helpful and thorough submissions which have been made on both sides by experienced counsel.

3 The claimant was injured in a motor vehicle accident on 15 August 2001, when his motorbike collided with a motor vehicle. There is no doubt that he suffered serious injury, the effects of which I am satisfied sufficiently for present purposes remained with him, and which are likely to cause him significant future impairment. There has been debate, not surprisingly, between the medical experts about precisely the extent of that impairment, but it must be remembered that such assessments as are required under the processes adopted by the Act are artificial in character and significantly unreal in terms of reflecting the actual impact of the injuries on the life of an ordinary person. For example, even a relatively low level chronic pain is a serious impairment not only of a person's enjoyment of life…

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: [2008] NSWSC 1259
Decision Date: 19 November 2008

CaseChat Overview and Summary

In the case of Butler v Korkidas, the claimant sought to bring proceedings for damages for injuries sustained in a motor accident outside the statutory limitation period. The dispute arose when the claimant's initial claim had expired, and the claimant was unable to commence proceedings within the required timeframe. The case was heard in the Supreme Court of Queensland, which was required to determine whether the claimant had a full and satisfactory explanation for the delay in bringing proceedings. The claimant argued that they had relied on their solicitors to act on their behalf and had acted reasonably in doing so.

The court was required to decide whether the claimant had provided a full and satisfactory explanation for the delay in bringing proceedings and whether the claimant had acted reasonably in trusting their solicitors to act on their behalf. The court also needed to determine whether the damages likely to be claimed would exceed the statutory limit, and if so, whether the claimant had made a practical and realistic assessment of the potential damages. The court considered the evidence presented by the claimant and their solicitors and whether the claimant had acted reasonably in placing trust in their solicitors.

The court found that the claimant had acted reasonably in placing trust in their solicitors to act on their behalf and had provided a full and satisfactory explanation for the delay in bringing proceedings. The court also found that the claimant had made a practical and realistic assessment of the potential damages and that the damages likely to be claimed would exceed the statutory limit. The court granted the claimant leave to commence proceedings outside the statutory limitation period, finding that the claimant had acted reasonably and in good faith in placing trust in their solicitors.

The court ordered that the claimant be granted leave to commence proceedings for damages for injuries sustained in a motor accident outside the statutory limitation period. The court also ordered that the claimant's solicitors be indemnified for any costs incurred in bringing the application for leave to commence proceedings. The court's decision provides guidance for claimants who have placed trust in their solicitors and who may be unable to bring proceedings within the statutory limitation period.

Orders