Dahdah v Witte

The case of *Dahdah v Witte* concerned an application for leave to institute proceedings under the *Motor Accidents Compensation Act 1999* (NSW) outside the prescribed time limit. The applicant, Ms. Dahdah, sought to bring a claim arising from a motor vehicle accident, but had delayed in doing so for several years after the incident. The primary judge had refused leave on the basis that Ms. Dahdah had not provided a "full and satisfactory explanation" for the delay, as required by sections 66(2) and 109(3)(a) of the Act. A further issue was whether the total damages likely to be awarded would exceed the amount prescribed by section 109(3)(b) of the Act.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that the applicant had not provided a "full and satisfactory explanation" for the delay in commencing proceedings, and whether the primary judge erred in failing to make findings regarding the likely quantum of damages. Specifically, the court considered whether the applicant's explanation of reliance on the respondent's insurer and ignorance of her right to make a claim constituted a "full and satisfactory explanation," and whether the applicant's claim of privilege over correspondence with her solicitor son was inconsistent with the obligation to provide such an explanation. The court also examined whether it should have resolved the issue of likely damages adversely to the applicant based on the medical reports adduced by the respondent, given the divergence in medical evidence.

The Court of Appeal held that the applicant did satisfy the requirements of section 109(3)(a) of the *Motor Accidents Compensation Act 1999* (NSW). The court found that the applicant's explanation, including her reliance on the insurer and her lack of legal knowledge, was sufficient. Furthermore, the court determined that the applicant satisfied section 109(3)(b) as the total damages likely to be awarded would exceed the prescribed amount, noting that the primary judge had made no findings on this issue and that the medical evidence was significantly divergent.

The Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the court below that dismissed the appellant's notice of motion and the proceedings. In lieu of those orders, the court dismissed the respondent's notice of motion, granted the appellant leave to commence proceedings *nunc pro tunc*, and ordered that the respondent pay the appellant's costs of the notice of motion, the application for leave to appeal, and the appeal. The proceedings were remitted to the District Court.