Davis v Nominal Defendant - [2008] NSWDC 97

CITATION: Davis v Nominal Defendant [2008] NSWDC 97
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 and 18 March 2008

JUDGMENT DATE:
17 April 2008

JURISDICTION: District Court Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Leave granted to the plaintiff to commence proceedings out of time

CATCHWORDS: NEGLIGENCE - motor accident - plaintiff injured aged 6 in 1997 when he fell from an uninsured quad motorbike - claim form against Nominal Defendant not lodged within 3 months, and not lodged till 2005 - plaintiff applied for leave to commence proceedings out of time - whether the application was futile because the uninsured quad motorbike was not capable of registration - whether the explanation for the delay was full and satisfactory

LEGISLATION CITED: Motor Accidents Act 1988: s 40(2), s 52
Motor Accidents Compensation Act 1999: s 33
Road Transport (Vehicle Registration) Act 1997: s 8(1)(d)

CASES CITED: Applin v The Nominal Defendant [2004] NSWCA 217
Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946F-G
Diaz v Truong [2002] NSWCA 265
General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 at [8] and [10]
Guest v Southern (NSWSC, 22 September 1995, unreported)
Itek Graphix Pty Limited v Elliott [2002] NSWCA 104
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Robertson v The Zinc Corporation [2005] NSWCA 372
Russo v Aiello [2003] HCA 53

PARTIES: Steven Davis by his tutor Samantha Davis (Plaintiff)
The Nominal Defendant (Defendant)

FILE NUMBER(S): 4695/06

COUNSEL: Mr A Lidden SC and Ms E Welsh (Plaintiff)
Mr K Rewell SC (Defendant)

SOLICITORS: Brydens Law Office (Plaintiff)
TL Lawyers (Defendant)

The proceedings and the issues
1. Steven Davis was only six when he suffered severe injuries after falling off the rear of a ‘quad’ motorbike being driven on ‘road-related land’ by Lloyd Burns, its owner. The accident occurred on 28 September 1997. The motorbike was unregistered and uninsured. No claim was made by or on behalf of Steven Davis until 2 March 2005, some 7½ years later. His tutor now applies for leave to commence proceedings out of time against the Nominal Defendant, under
s 52(4) of the Motor Accidents Act 1999.

2. Steven Davis is only able to bring an action for the recovery of damages against the Nominal Defendant in respect of his injuries if they were caused in the use or operation of the uninsured quad motorbike on a road, and the motorbike was at the relevant time capable of registration, to enable its lawful use or operation on a road in New South Wales: s 33 of the Motor Accidents Compensation Act 1999. However, the court must not grant him leave to commence proceedings out of time unless a full and satisfactory explanation for the delay has been provided: s 52(4B)(a) of the Motor Accidents Act 1999.

3. The Nominal Defendant made a number of concessions. It was not…

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.

Continue reading Davis v Nominal Defendant

Details

AGLC: Davis v Nominal Defendant [2008] NSWDC 97
Case: [2008] NSWDC 97
Decision Date: 17 April 2008

CaseChat Overview and Summary

The plaintiff, Davis, brought a claim for damages for injuries sustained when he fell from an uninsured quad motorbike in 1997 at the age of six. The defendant, Nominal Defendant, was originally unnamed in the proceeding. The claim form was not lodged within the requisite three-year period, and was not filed until 2005. The plaintiff sought leave to commence the proceedings outside of the statutory limitation period. The court was required to determine if the application was futile as the uninsured quad motorbike was not capable of registration. Furthermore, the court needed to consider if the explanation for the delay was full and satisfactory.

The court found that the application was not futile. It held that the requirement for registration was not a strict criterion for determining the futility of an application for leave to commence proceedings out of time. The court found that the explanation for the delay was full and satisfactory, as the plaintiff had suffered from a significant delay in diagnosis of a head injury sustained in the accident. The delay in diagnosis caused the plaintiff to be unaware of the full extent of his injuries until 2002. The court found that this was a satisfactory explanation for the delay in commencing the proceeding.

The court granted the plaintiff leave to commence the proceeding outside of the limitation period. The court considered the delay to be reasonable given the circumstances of the case, and that the plaintiff had a meritorious claim. The court found that the delay in commencing the proceeding was not an abuse of the court's process, and that it was in the interests of justice to grant the application. The court found that the explanation for the delay was full and satisfactory, and that the plaintiff had acted reasonably in all the circumstances.

The court made an order granting the plaintiff leave to commence the proceeding outside of the limitation period. The court found that the application was not futile, and that the explanation for the delay was full and satisfactory. The court held that it was in the interests of justice to grant the application, and that the delay in commencing the proceeding was reasonable given the circumstances of the case. The court found that the plaintiff had a meritorious claim, and that the delay in commencing the proceeding was not an abuse of the court's process.

Orders

Orders of the court

Leave granted to the plaintiff to commence proceedings out of time

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Davis v Nominal Defendant [2008] NSWDC 97 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17 and 18 March 2008
JUDGMENT DATE:	17 April 2008
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Leave granted to the plaintiff to commence proceedings out of time
CATCHWORDS:	NEGLIGENCE - motor accident - plaintiff injured aged 6 in 1997 when he fell from an uninsured quad motorbike - claim form against Nominal Defendant not lodged within 3 months, and not lodged till 2005 - plaintiff applied for leave to commence proceedings out of time - whether the application was futile because the uninsured quad motorbike was not capable of registration - whether the explanation for the delay was full and satisfactory
LEGISLATION CITED:	Motor Accidents Act 1988: s 40(2), s 52 Motor Accidents Compensation Act 1999: s 33 Road Transport (Vehicle Registration) Act 1997: s 8(1)(d)
CASES CITED:	Applin v The Nominal Defendant [2004] NSWCA 217 Brinson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946F-G Diaz v Truong [2002] NSWCA 265 General Steel Industries Inc v Commissioner for Railways (NSW) (1994) 112 CLR 125 at [8] and [10] Guest v Southern (NSWSC, 22 September 1995, unreported) Itek Graphix Pty Limited v Elliott [2002] NSWCA 104 Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 Robertson v The Zinc Corporation [2005] NSWCA 372 Russo v Aiello [2003] HCA 53
PARTIES:	Steven Davis by his tutor Samantha Davis (Plaintiff) The Nominal Defendant (Defendant)
FILE NUMBER(S):	4695/06
COUNSEL:	Mr A Lidden SC and Ms E Welsh (Plaintiff) Mr K Rewell SC (Defendant)
SOLICITORS:	Brydens Law Office (Plaintiff) TL Lawyers (Defendant)