Cantarella Bros Pty Ltd v Angela Muller Hazel Kennedy

Cantarella Bros Pty Ltd (Cantarella) and Angela Muller Hazel Kennedy (Kennedy) were the parties in this matter before the Supreme Court of New South Wales. The dispute concerned Kennedy's claim for damages for personal injuries sustained in a motor vehicle accident. Cantarella, the employer of the driver of the other vehicle, sought to rely on a defence under section 138 of the Motor Accidents Compensation Act 1999 (NSW) (the Act), which requires a claimant to provide notice of the claim within six months of the date of the injury, or within such further period as the insurer or the Nominal Defendant may allow. Kennedy had failed to provide notice within the prescribed six-month period.

The primary legal issue before the Court was whether Kennedy had established a sufficient reason for the delay in providing notice of her claim, thereby justifying the extension of time sought under section 138(2) of the Act. This required the Court to consider the nature of the "sufficient reason" that would permit an extension, and the principles governing the exercise of discretion in granting such an extension, particularly in circumstances where the delay was significant.

The Court, applying the principles established in cases such as *Nominal Defendant v Motor Accidents Insurance Board* [2004] HCA 30, considered the reasons provided by Kennedy for the delay. These included her initial belief that her injuries were not serious, her subsequent medical treatment, and her eventual understanding of the potential for ongoing symptoms and the need to make a claim. The Court found that Kennedy's reasons, while not entirely free from criticism, did constitute a "sufficient reason" for the delay, particularly given her genuine belief about the severity of her injuries and the subsequent medical advice she received. The Court emphasised that the purpose of section 138 was to prevent stale claims and that the discretion to extend time should be exercised having regard to all the circumstances, including the claimant's conduct and the potential prejudice to the insurer.

The Court ordered that the time for Kennedy to give notice of her claim be extended.